Jamal-UD-Din (Migration)

[2020] AATA 3411

Jamal-UD-Din (Migration) [2020] AATA 3411 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jamal-UD-Din

CASE NUMBER:  2002505

HOME AFFAIRS REFERENCE(S):          BCC2019/5230828

MEMBER:Vanessa Plain

DATE:1 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 July 2020 at 2:31pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – applicant obtained course medical deferment – applicant returned to his home country for treatment – new enrolment not obtained – decision under review set aside     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

CASES

Singh v MIBP [2016] FCA 679           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 2020 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. 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 26 June 2020 to give evidence and present arguments.  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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 full time registered course: 8202(2)(a)

   ·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).

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

8. An examination of the Delegate’s file and the Tribunal’s file reveals that the applicant was granted a Student (Temporary) (class TU) (subclass 500) visa in November 2018.  PRISMS indicated that he has finished two courses of study; General English and a Diploma of Leadership and Management.  However, the principal course for which the applicant’s visa was granted, being a Masters of Business Administration, was cancelled on 29 November 2018.

9. The applicant received a Notice of Intention to Consider Cancellation (NOICC) of the visa on or around 16 January 2020.  The applicant responded in writing on 22 January 2020.  The applicant did not clearly articulate whether he agreed that there were grounds for cancellation, but he provided that he obtained an approved deferment from his education provider until 7 December 2018 based upon medical grounds.

10. At the hearing, the applicant candidly admitted that he was not enrolled in a registered course, but contended that he was not enrolled from 8 December 2018 onwards, due to having received a deferral from his course provider.  The Tribunal has had regard to a letter from Universal Business School Sydney, dated 30 August 2018, which confirms that the applicant had been granted a deferral on compassionate grounds for the period 27 August 2018 to 7 December 2018.    

11. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 8 December 2018.   Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).

    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.

13. 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’.

14. The applicant provided reasons in his response to the NOICC as to why his visa should not be cancelled.  The reasons, as set out in the Delegate’s decision (verbatim) are as follows:

    ·‘The visa holder deferred his course due to a medical condition and he went back to his home country to get treatment.’

    ·‘He claimed that his approved deferment was until 7 December 2018 and he was supposed to return to his study on 29 January 2019, however, the enrolment was “discontinued from November 28th 2018 without being notified by my institution or sent out of any such happening through email or other means” [sic].’

    ·‘The visa holder claimed that the relationship breakdown between him and his wife during this time further affected him mentally and physically.’

    ·‘He stated that when he came back to Australia, “the college intake enrolment was over” [sic] and he has not had any contact from the education provider.

    ·‘The visa holder indicated that if he had known about his non-enrolment and “had been told about the consequences” he “would have devoted my every effort to saving it” [sic].’

    ·‘If the visa is cancelled, he would return to his home country “without achievement of qualification” after paying “approximately $45k in fees” [sic]. The visa cancellation would also lead to his family’s disappointment and his embarrassment.’

    ·‘He claimed that the education provider is reconsidering his “enrolment and compassionate circumstances” after he has submitted “all the explanation as supporting” [sic].’

    ·‘The visa holder stated that he has always abided by the law and he has not done any harm to anyone. If he is given a chance, he would “fulfil the remaining part of the course and leave to my home country”.’

15. The applicant submitted a suite of documents to the Tribunal in support of his review hearing, which the Delegate did not have the benefit of at the time of the delegate’s decision, as follow:

    ·Deferral letter of 30 August 2018, demonstrating course deferral between 27 August 2018 and 7 December 2018 for a Masters of Business Administration;

    ·A suite of medical documents evidencing treatment for a serious medical condition, obtained in the applicant’s home country in late 2018 and early 2019;

    ·MRI report from Akram Hospital;

    ·Letter from Dr Amanullah;

    ·A signed statement regarding the breakdown of the applicant’s marriage while seeking medical treatment in his home country in late 2018; and

    ·Correspondence with the university seeking re-enrolment.

    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 

16. The applicant arrived in Australia on 05 February 2015 on a Student (subclass 573) visa for the purpose of undertaking registered courses of study in Australia. He was subsequently granted the current Student (subclass 500) visa on 02 November 2018 for the purpose of undertaking, primarily a Masters of Business Administration.  He has completed a General English course and a Diploma of Leadership and Management while onshore.

17. The applicant’s Masters of Business Administration was cancelled on 29 November 2018 by his education provider.  It ought not to have been cancelled, because he was clearly granted a deferral of his studies on compassionate grounds due to a serious medical condition, until 7 December 2018.  That fact is evidenced by the letter produced by the applicant referred to above.

18. Departmental records indicate that the applicant left Australia on 06 December 2018 and he returned to Australia on 29 January 2019.  During that time, the documents referred to above clearly establish that he was receiving medical treatment abroad for a serious neurological condition and for depression, as a result of the breakdown of his marriage while he was being treated for a neurological condition. 

19. When the applicant retuned, the applicant did not seek to defer his course a second time, he did not return to class in early 2019.  He claimed that he was waiting for correspondence from the education provider regarding the enrolment.  He stated that because he had obtained a deferral, he was expecting the school to contact him with his revised start date.  Given that he was being treated to depression and anxiety at the time as a result of his marriage breakup and associated medical conditions, he did not follow up the school.  He candidly admits that he should have done so, but that he was overwhelmed after his treatment abroad.  Having regard to the matters set out in the suite of medical documents to which I referred above, the Tribunal accepts the applicant’s evidence as to why he did not follow up his education provider in early 2019 as entirely reasonable in the circumstances.

20. The applicant stated that he became aware that his enrolment was cancelled when he received the NOICC.  He immediately took steps to contact the university, in person and in writing.  He sought re-instatement of his enrolment, evidenced from the documents referred to above.  He was unsuccessful in that endeavour.  He stated that he ought to have taken steps sooner, but that his medical conditions, which were made all the more challenging by the medication he was taking, were such that he was simply overwhelmed and on that basis failed to do so.

21. The applicant has subsequently taken steps to seek re-enrol in the same course at two other course providers, but due to the fact that his visa ins cancelled, he has not been able to obtain a CoE yet.   

22. The Tribunal finds that the applicant has no compelling need to remain in Australia permanently and that he has demonstrated that his purpose for being in Australia is for the purpose of study. 

23. The Tribunal gives these factors some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

24. The ground for cancellation occurred because the applicant did not maintain enrolment in a registered course. 

25. The Tribunal places significant weight on the matters described in the contemporaneous documents described above and the applicant’s evidence as set out in the aforementioned paragraphs, as the basis for concluding that the reason for the breach of the visa condition in this particular case, was due in substantial part to matters not reasonably within the control of the applicant.

26. The medical documents clearly establish that he was suffering from a serious illness in late 2018 and early 2019 for which he obtained compassionate leave from his education provider and which was clearly compounded by a marriage breakdown at the same time.  The applicant was clearly prescribed medication to address symptoms of depression in 2019. 

27. The Tribunal also places weight on the fact that the documents clearly establish that the applicant, upon becoming aware of the cancellation of his enrolment, took steps to appeal that cancellation and seek re-enrolment.  The documents are consistent with the applicant’s understanding that he was labouring under the view that the school would contact him with a revised date for commencement.  The school’s documents do not challenge that understanding

28. The Tribunal places weight in favour of the applicant by the production of these documents and the candid and frank explanation of these matters in oral evidence.   

29. The Tribunal accepts that the totality of the above matters contributed significantly towards the applicant’s breach of his visa condition.  These are matters not within the reasonable control of the applicant and the Tribunal therefore gives the above matters significant weight in favour of not cancelling the visa. 

    The extent of compliance with visa conditions

30. The applicant has not complied with condition 8202(2)(a).  There is no evidence of non-compliance with other visa conditions. 

31. However, as above, I find that the applicant had a compelling reason for the breach and that the circumstances that led to the breach were not reasonably within his control.  Whilst I find that the applicant did breach the condition, given the circumstances giving rise to the breach, I give this no weight towards the visa being cancelled. 

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

32. The applicant gave evidence orally and in his statement as to the psychological, emotional and financial hardship he will face if his visa is cancelled in these circumstances.  He is particularly concerned about bringing shame and embarrassment to his family and about returning home without a qualification where he has already expended significant sums of money paying fees   

33. The Tribunal accepts that the cancellation has led to personal detriment for the applicant, which would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled.   

    Past and present behaviour of the visa holder towards the Department

34. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department.  There is no evidence of no co-operation with department staff.

35. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

36. Departmental records indicate that the applicant has no dependant family member whose visa will be cancelled under s140 of the Act as a consequence of his visa cancellation.

37. The Tribunal therefore gives this factor no weight for or against the cancellation of the visa

    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

38. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete any study before returning home.

39. Given the circumstances set out above, this would be manifestly unfair and the Tribunal gives this some weight in favour of the visa not being cancelled. 

    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

40. Not applicable.

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

41. Not applicable.

    Any other relevant matters

42. There are no other relevant matters to consider. 

43. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and arose due to matters that were not, in fairness, within his reasonable control.  It is also clear that the considerations I have arrived at, upon examining all the evidence before me, lean towards the visa not being cancelled and I so find.

44. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    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.