Javaid (Migration)

[2022] AATA 3481

Javaid (Migration) [2022] AATA 3481 (13 September 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hashim Javaid

REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)

CASE NUMBER:  2205478

HOME AFFAIRS REFERENCE(S):          BCC2021/2440268

MEMBER:Noelle Hossen

DATE:13 September 2022

PLACE OF DECISION:  Perth

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 13 September 2022 at 4:52pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – no courses completed – enrolment ceased – applicant changed to Vocational courses – family health issues – financial hardship – impact of the COVID19 pandemic – marriage breakdown – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 116, 119, 140
Migration Regulations 1994, r 2.43

CASES

MIMA v Hou [2002] FCA 574
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 8 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(fa)(i) on the basis that in the 24 months since the visa was granted the visa holder failed to complete a single course of study and had consistently poor attendance record. The visa holder did not hold a CoE in any registered course from 25 May 2021 to 16 January 2022. 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 9 June 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal heard oral evidence from the applicant’s friend Arslan Ejaz.

5. 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

6. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1) (fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

7. The evidence before the Tribunal and contained in the Delegate’s Decision can be briefly summarised chronologically as follows:

   13/03/2020   Date that the Student Visa was granted for the applicant to study at Edith Cowan University a Diploma of Commerce to commence on the 19 February 2020 to 29 January 2021 followed by a Bachelor of Commerce to commence 22 February 2021 to 18 November 2022.

   16/03/2020    Date that the applicant arrived in Australia from Pakistan. According to the Delegate’s Decision he started his course on the 17 June 2020.The records showed that he his total attendance for the course for the second semester 2020 was 31.25 per cent and the applicant failed 2 subjects during this semester.

   29/06/2020    Applicant enrols in Certificate III in Commercial Cookery at Global College

   26/10/2020    Applicant receives a warning letter from Edith Cowan University for non-attendance

   2/11/2020 the applicant was notified by Edith Cowan College that his enrolment was cancelled, and he was excluded from studying at the college.

   5/11/2020     Diploma of Commerce is cancelled by Edith Cowan College due to “Student notifies Cessation of Studies “The CoE for the Bachelor of Commerce was cancelled on the 13 November 2020.

   28/09/2020 to 25/03/2021 Applicant received 14 warning letters from Edith Cowan College for low-rate attendance

   3/02/2021 Last day of study at Global College. The Delegate’s Decision states the “The Visa Holder ‘s study records provided by Global College Australasia indicate that his attendance rate for the study period from 28 September 2020 to 25 May 2021 was 56 percent

   11/02/2021 Letter setting out his father’s condition

   21/05/2021 The applicant lodged an appeal and applied for a Deferral due to claimed mental health issues caused by financial difficulties which was unsuccessful on the 25 May 2021 by Global College Australasia due to lack of documentary evidence to support his claim. The enrolment for the Certificate III course was cancelled on the 25 May 2021 due to “Unsatisfactory course progress.”

   1/08/2021 Date of the Applicant’s marriage

   17 /01/2022 The applicant enrols in a Certificate III in Commercial Cookery .

   01/2021 The Applicant consults his doctor and said that he had trouble sleeping and was suffering from psychomotor agitation and retardation

   15/03/2022 Notice of Intention to cancel the Visa is issued by the Department.

   16/03/2022 Applicant receives a referral to his psychologist for a Mental Health Issue to Dr Hwee.

8. The chronology above sets out the history as set out in the Delegate’s Decision which was provided to the Tribunal by the applicant.

   Does the ground for cancellation exist?

   s 116(1)(fa) - not a genuine student

9. A visa may be cancelled under s 116(1) (fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s 116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s 119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision.

12. The Delegate summarised the position as follows: “At the date of the Notice of Cancellation the applicant had held the Student Visa for approximately 24 months. PRISMS indicated that during the period he has held valid enrolments for a total of over 16 months and his total period of actual study is only over ten months. The applicant had failed to meaningfully participate in courses since the grant of the Visa. He did not hold a Confirmation of enrolment for 8 months. He did not notify the Department of his change in circumstances”.

13. In view of his lack of attendance and lack of progress in any registered course there are grounds to cancel the Visa as he did not appear to be a genuine student.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1) (fa)(i) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

15. 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, whether the visa holder has a compelling need to travel to or remain in Australia:

16. The applicant was granted a Student Visa to study a Diploma of Commerce and a Bachelor of Commerce. At the hearing the applicant did not provide evidence to the Tribunal that he had completed a registered course since his arrival. He did provide a summary of the hours that he had spent studying for his Certificate III that he commenced studying in January 2022. It is noted that he has received some credit for the units that he was competent in, presumably when he previously studied the Course.

17. The Delegate noted that the applicant’s previous courses were cancelled for non-commencement of studies, unsatisfactory course progress and student notifying that he was ceasing the studies.

18. The Tribunal acknowledges that the applicant is now trying his best to complete his Course. He pleaded with the Tribunal to allow him to remain in Australia to finish the Course as he admits that his purpose of coming to Australia has resulted in failure and he therefore does not wish to return to his home country as he is ashamed and knows that his family will be disappointed. The Tribunal takes into consideration that the applicant was only 19 years of age when he arrived in Australia and that he was only 21 years of age when he appeared at the hearing.

19. The applicant has expressed remorse for his failures and is genuinely hoping to pass the course that he is presently studying.

20. He has the assistance of his friend who gave evidence who is now living with him . He is also seeking counselling through his medical practitioner and a psychologist.

21. The fact that he appears back on track in his studies and is genuinely attending to his psychological health is one of the reasons why the Tribunal weighs those facts in favour of not cancelling the Visa.

    The extent of compliance with visa conditions:

22. The applicant is trying to comply with his visa conditions since January 2022.

23. He assured the Tribunal that he would continue to study.

24. He was genuinely remorseful that he had failed in his endeavours in Australia.

25. He accepts that he was not diligent, but he impressed on the Tribunal that there were various factors that did not help the situation such as the fact that his father was ill and the covid pandemic resulted in financial loss for his family who wre unable to help him financially.

26. The Tribunal finds that he did not comply with his Visa conditions and dpoes place some weight on those facts against the applicant’s case.

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

27. The cancellation of the Visa would result in a difficult situation for the applicant who said that he felt suicidal as a result of the Notice of Cancellation. This was noted on the Medical report provided to the Tribunal.

28. The applicant was very distressed at the hearing and he did think that his life would be ruined if his Visa was cancelled as his family had invested a lot of money to send him to Australia. He was ashamed of his position.

29. He said that his father has a heart condition and his medical advisers had told him not to discuss the issues with his father who was not well enough to handle the situation.

30. The Tribunal accepts that the cancellation of the Visa is likely to cause great psychological hardship to the applicant and weighs those facts against cancelling the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

31. The applicant’s case was that the cancellation arose as a result of his noncompliance with the visa conditions which were beyond his control because of the financial difficulties experienced by him and his family, due to the pandemic. The Tribunal does consider that the pandemic did cause disruptions to the lives of international students in Australia. During the pandemic the borders were closed so it was not easy for the applicant to depart Australia. The applicant says that he was also affected as he could not find work. His family suffered because of the pandemic and lost a lot of money. If what the applicant says is true, then the circumstances were out of his control and did add to his anxiety and distress.

32. He also married during that period, which was short lived and resulted in a marriage breakdown and on his version of events, including that of his witness, it was because of family violence. His witness confirmed his story, and the Tribunal has no reason to doubt the evidence.

33. The Tribunal does find that some of these circumstances were out of his control and therefore weighs those factors against cancelling the Visa.

    Past and present behaviour of the visa holder towards the department:

34. There was no evidence that the applicant has not cooperated with the department, so the Tribunal weighs those facts against the cancellation of the Visa.

    whether there would be consequential cancellations under s 140:

35. There will not be a consequential cancellation pursuant to Section 140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

36. There are legal consequences if the visa is cancelled as the applicant may become an unlawful non-citizen. He would have limited options if applying for further visas while in Australia. The Tribunal does give these considerations some weight against cancelling the Visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

37. There is no evidence that cancelling the visa will lead to a breach of Australia’s international obligations.

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

    decision

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

    Noelle Hossen
    Member

    
    

    ATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.