JAMIL (Migration)

JAMIL (Migration) [2019] AATA 6515 (7 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rao Asif JAMIL
CASE NUMBER:  1714761
HOME AFFAIRS REFERENCE(S):          BCC2017/1505849
MEMBER:Melissa McAdam
DATE:7 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 January 2020 at 9:54am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – conflict between two education consultants – mother’s death and father’s illness – medical evidence provided – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 July 2017 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).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
NOICC
On 5 June 2017 the Delegate issued a Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section 116 (General Power) of the Migration Act (‘the NOICC’) to the applicant. The Delegate set out the following information in the NOICC:
It appeared that the applicant has not complied with paragraph 8202(2)(a) of Condition 8202.
Condition 8202(2)(a) states that the visa holder meets the requirements if the visa holder is enrolled in a registered course.
Based on evidence before the Delegate it appeared the applicant has not been enrolled in a registered course of study since 26 August 2016.
Response to NOICC
On 27 June 2017 the applicant sent a written response to the Department, including the following information:
He arrived in Australia on 22 January 2012 and commenced a course in Advanced English, which he completed in August 2012. He then commenced his Certificate IV Diploma of Accounting which he completed in 2014. He then started studying a Bachelor degree at the Elite College and passed two out of four subjects.
One day the Elite College Marketing Manager called the applicant into his office and told him to leave the college because there was a dispute between two education consultants regarding the applicant. They were threatening the Marketing Manager.
The applicant had been using QC Education consultants but switched to ISES Education Consultants because they offered him a discount. QC Consultants then started threatening the Elite College about the applicant. The Elite College Marketing Manager insisted the applicant pay the full college fee to him, without the discount, or he would cancel the applicant’s CoE (Confirmation of Enrolment). The applicant therefore paid the full fee.
The Elite College Marketing Manager continued to harass the applicant to force him to leave the college. The applicant became emotionally and mentally strained. He visited two doctors and was advised to see a psychologist. The earliest appointment he could obtain was in three months’ time. Before he could see a psychologist the applicant had to return to his home country because of his mother’s sudden death.
He contacted the Elite College by email but received no responses.
He obtained admission into Holmes Institute on 4 August 2016 and prepaid his tuition fees. He completed a half of ‘BBC-Accounting’ but his consultant misled him that he could not continue his studies because he had breached his visa condition by enrolling in a ‘non-SVP’ college. The worsened his psychological problem.
He received information about his father’s serious health condition. His father is diabetic. The applicant’s situation became more stressful.
He returned to Pakistan in January 2017 and received treatment from a psychiatrist there, so that he extended his stay in Pakistan.
When he returned to Australia enrolments were closed and he could not enrol in the March 2017 intake.
He therefore missed enrolment because of the rivalry between the education consultants, the ‘non-professional attitude’ of the Elite College Marketing Manager, his mother’s death, his father’s illness and his psychological problems.
He has since become fit to continue his studies.
He attached the following document copies:
-Holmes Institute CoE to the applicant for a Bachelor of Professional Accounting, create 4 August 2016.
-Medical Certificate dated 15 February 2016, stating that the applicant is “suffering from medical condition (URTI)” and “will be unfit for his normal duties/UNIVERSITY from 15/2/2016 to 18/2/2016”.
-A referral, dated 15 February 2016, by a doctor of the applicant to a psychologist, stating that the applicant “looks stressed” and was “having depressive episode”.
-Medical Certificate dated 2 March 2016, recording that the applicant “says that he wants to go to Pakistan as he is feeling depressed in Australia”.
-Medical Certificate by Dr Anees Ahmed Sial, Consultant Psychiatrist, dated 31 March 2016. It is handwritten and not readily legible.
-Medical Certificate by Dr M. Irfan Rana, Physician and Surgeon, stating that the applicant is suffering from “generalized anxiety distress” and is referred to Dr Sial for further investigation, with bed rest for one week advised from 24 March 2016.
-Medical Certificate dated 1 March 2017, by Dr M. Irfan Rana, Physician and Surgeon, stating that the applicant is suffering from “generalized anxiety distress” and is a patient of Dr Sial, with bed rest for four weeks advised between 1 March 2017 and 28 March 2017.
-Email message from the applicant to the Elite College on 4 April 2016, explaining his circumstances, and requesting the college not to report him or non-enrolment.
-Email message from the applicant to the Elite College on 13 March 2016, stating that his mother died in 2014 and his father is not well. He is unable to attend class because of his low mood. He has an appointment with a psychiatrist who has advised him to defer his studies due to ‘depression illness’ beyond his control. He requests that his studies for semester 1 of 2016 be deferred or suspended on compelling compassionate grounds, attaching medical certificates.
-Elite Education Institute Appeal Form, dated 18 April 2016, completed by the applicant, setting out his situation.
-Email dated 18 March 2016, from the Student Services Manager of Elite Education Institute to the applicant advising him he has breached his visa condition and the institute intended to report him, giving him 20 days to appeal the decision.
-Email dated 1 August 2016, from the Accounts Department of Elite Education Institute to the applicant advising him to pay tuition fees by 12 August 2016 or further action would be taken.
-Flight Booking confirmation in the applicant’s name, for flights to and from Lahore, Pakistan and Sydney, between 22 March 2016 and 5 May 2016.
-Flight Booking confirmation in the applicant’s name, for flights to and from Lahore, Pakistan and Sydney, between 19 January 2017 and 21 March 2017.
Delegate’s Decision
The Delegate noted that the applicant’s PRISMS record showed the applicant had not been enrolled in a registered course of study since 26 August 2016. The Delegate was satisfied there was a ground for cancellation of the applicant’s visa under s.116(1)(b) for breach of condition 8202. The Delegate gave the circumstances of the applicant’s breach of his visa condition weight in the applicant’s favour, but decided to cancel the visa.
Information to the Tribunal
The Department’s records indicate that the applicant departed Australia on 6 November 2017 and has not returned.
On 22 August 2019 the Tribunal wrote to the applicant, by email, asking him to provide information about his current circumstances and why his Student visa should not be cancelled.
Pre-hearing Submission.
On 2 September 2019 the applicant provided a written response to the Tribunal, containing the following:
a.He was not enrolled in a registered course of study since 26 August 2017.
b.He responded to the NOICC.
c.He has been in Pakistan since November 2017.
d.He was enrolled in a Bachelor degree at Elite College between 2 November 2015 and 15 February 2016. In the third trimester he passed 2 out of 3 subjects. He was awarded 8 credit exemptions.
e.During the first trimester of 2016 he was asked to leave Elite College because of the dispute between his education consultants.
f.On 13 March 2016 he sent a letter to Elite College asking for his studies to be suspended or deferred. The college sent him a notice to intend to report the applicant.
g.He went to Pakistan on 22 March 2016 for medical reasons. He tried to communicate his situation to the college but they did not engage with him.
h.He received a CoE at Holmes Institute but his enrolment was late. The college was then closed for summer vacation so the applicant could not enrol in 2017.
i.Because his father was ill he returned to Pakistan on 19 January 2017. He extended his stay there to care for his father and to consult a psychiatrist.
j.Before his enrolment at Holmes Institute could be completed he received the NOICC from the Department.
k.He was not enrolled in a course of eductaion for seven months.
l.He had been a good student in Australia and spent a huge amount of money on his education here.
m.He was issued a Bridging visa on 11 August 2017. He had to depart Australia in November 2017 because he could not survive here without financial support.
n.He is studying a Bachelor degree in Pakistan.
o.He attached a copy of a medical report for his father, dated 15 October 2016, which prescribes medicine for diabetes, hypertension and sensory neuropathy.
Tribunal Hearing
The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments. The following is a summary of the information the applicant presented at the hearing:
a.He confirmed he had not been enrolled in a registered course of study for almost ten months because he had some problems with his education consultants and personal problems.
b.When he was in Australia he completed a Certificate III in English, a Certificate IV in accounting and a Diploma in Accounting. He also passed 14 subjects for his degree before his visa was cancelled.
c.He had to recommence his study afresh in Pakistan because of the visa cancellation. He is currently studying a Bachelor of Arts degree in Pakistan.
d.He lives in Pakistan with his wife and father. His father is over 70 years old and is diabetic. The applicant is the only one there to take care of him. The applicant’s elder brother is residing in Australia.
e.The applicant’s mother died about four years ago. This badly affected the applicant because he is the youngest in the family. His mother suffered over a period of time with cancer. He and his brother received news of this in Australia. There was no one to take care of her in Pakistan. After her death his father got upset and developed depression. The applicant was also very homesick and depressed and could not study properly.
f.He had been visiting Pakistan regularly while studying in Australia. He returned there after his mother died. When he returned to Australia in 2017 he intended to graduate and get a good job.
g.The Tribunal put to the applicant that his visa was due to expire in March 2018 so setting aside the cancellation would not mean he again has the visa. The applicant responded that he has other options to come to Australia but he has a three year bar from being a temporary entrant because of the visa cancellation. He wants the prohibition removed so that he can apply for a visa to Australia.
h.He complied with all his other visa conditions while he was in Australia.
i.The circumstances why he failed to maintain his enrolment were out of his control. These were his mother’s death, his father’s illness, and his own mental health issues.
j.He is a devoted student and likes to study. When he applied for review of the cancellation decision he received permission for limited work and unlimited stay in Australia yet he still returned to Pakistan because he was not allowed to study.
k.He hopes to return to Australia with his wife in the future.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant’s education records show that he was not enrolled in a registered course of study in Australia from August 2016 onwards. The applicant also confirmed in his written response to the Department and his oral evidence to the Tribunal that he had not maintained his enrolment in Australia.
On the basis of the available evidence the Tribunal finds that the applicant has not complied with condition 8202(2) while in Australia.
Consideration of the discretion to cancel the visa
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’
the purpose of the visa holder’s travel and stay in Australia,
The applicant was in Australia on a Student visa for the purpose of study. The Department’s records show he has held student visas in Australia over a period of five years, between June 2012 and July 2017. During this time he completed several education courses and appears to have been studying for at least the first four years of the five he was present here.
The Tribunal also notes the applicant’s evidence that the lack of permission to continue his study in Australia influenced his decision to leave and return to Pakistan, despite holding a Bridging visa which would allow him to remain and to work, at least during the review process. The Tribunal considers this further evidence that the applicant’s overall purpose in Australia was for study and education.
The Tribunal therefore gives this factor some weight in the applicant’s favour.
whether the visa holder has a compelling need to travel to or remain in Australia
The applicant has departed Australia. He did not present any compelling need to travel to Australia. He expressed a wish to obtain a visa to Australia in the future but did not attach any particular urgency or importance to being able to travel here. The Tribunal considers this factor weighs in favour of cancelling the applicant’s visa.
the extent of compliance with visa conditions
The information before the Tribunal indicates the applicant has complied with his other visa conditions. The Tribunal therefore gives this factor some weight in the applicant’s favour.
the degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The cancellation of the applicant’s visa has resulted in him having to depart Australia without completing his degree course here. It has therefore caused substantial disruption to the applicant’s life, study and career plans. It has also cost him financially. The Tribunal therefore accepts that the visa cancellation has resulted in a significant level of hardship to the applicant. The Tribunal gives this factor some weight in the applicant’s favour.
the circumstances in which ground of cancellation arose
The applicant has maintained that his enrolment was jeopardised by the conflict between two education consultants and by his emotional problems arising from his mother’s death and father’s illness. He has provided medical and other evidence to support these claims. There is no information before the Tribunal to indicate that the reasons he has presented are not genuine. On the evidence before it the Tribunal accepts the applicant’s explanations of the circumstances which led to the breach of his visa condition.
The Tribunal views these reasons sympathetically to the applicant. The conflict between the two education consultants created the context in which the applicant’s enrolment lapsed. It is further understandable he would experience a high level of emotional distress at his mother’s death and father’s illness and that this would adversely impact his ability to remedy his situation and to study successfully in Australia.
The Tribunal notes that up until these events the applicant had been a genuine and responsible student, completing education certificates and diplomas in Australia.
The Tribunal therefore gives this factor substantial weight in the applicant’s favour.
the past and present behaviour of the visa holder towards the department
The information before the Tribunal shows that the applicant has been cooperative and responsive with the Department from the time he received the NOICC. He has also responded to the Tribunal’s queries and engaged with the review process, despite departing Australia.
The Tribunal therefore gives this factor some weight in the applicant’s favour.
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
The applicant has departed Australia so he is not liable to detention here. The visa cancellation does however render him subject to Public Interest Criterion 4013 so that he must wait three years from the date of cancellation before he can be granted another visa to Australia. This prohibition period will expire in several months, in June 2020. The Tribunal does not consider several months a particularly long or unreasonable period to wait to be able to obtain a visa to Australia.
However a visa cancellation is also a negative aspect of a person’s immigration history which can cause other obstacles in negotiating international travel.
The Tribunal therefore gives this factor a little weight in the applicant’s favour.
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

There is no evidence that any of Australia’s international obligations would be breached as a result of the visa cancellation.
The Tribunal considers this factor favours cancelling the applicant’s visa.
Other relevant matters
According to the Department’s records the applicant’s Student visa was due to expire in March 2018. This date has passed so that the visa cannot be reinstated to the applicant.
However setting aside the cancellation will allow the applicant to now pursue other visa options for return to Australia if he wishes. His brother and sister are here and he has spent several years here himself. The Tribunal accepts he would want to visit Australia. However as stated above, in several months’ time, in June 2020, the PIC 4013 bar will no longer prevent him being granted a visa to Australia. The Tribunal therefore gives this factor only a little weight in the applicant’s favour.
Conclusion
The Tribunal considers that the factors in favour of not cancelling the applicant’s visa outweigh the factors favouring cancellation.
Considering the circumstances as a whole, particularly the circumstances in which the breach of Condition 8202 arose, 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 Subclass 573 Higher Education Sector visa.
Melissa McAdam
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.

[2019] AATA 6515

7 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies