JAVED (Migration)

JAVED (Migration) [2019] AATA 5691 (3 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr HAFIZ MUHAMMAD FAISAL JAVED
CASE NUMBER:  1832297
HOME AFFAIRS REFERENCE(S):          BCC2018/1353656
MEMBER:Elizabeth Tueno
DATE:3 December 2019
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 03 December 2019 at 3:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – sick relative – pregnant wife – financial issues – currently enrolled – emotional hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 October 2018 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).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he was not enrolled in a registered course from 23 March 2017. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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
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 confirmed that he had been enrolled in a Bachelor of Accounting course but that his enrolment was cancelled on 23 March 2017. Since then, he has left Australia and returned to Pakistan while his father was unwell. Upon his return, his wife (whom he had married in Pakistan in 2016 and came to Australia with the applicant in April 2017) gave birth to their child on 26 March 2018. He enrolled in an MBA course which commenced on 27 August 2018 however his enrolment was cancelled after he failed all subjects in the first two semesters.
He has now enrolled in a Graduate Certificate in Management at Lennox Institute, which commenced on 30 September 2019 and will end on 27 September 2020.
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
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 Tribunal has had regard to the applicant’s oral evidence provided at the hearing as well as the Department’s file and documents provided to the Tribunal by the applicant including various confirmations of enrolment, medical records relating to the applicant’s father illness and wife’s pregnancy, the applicant’s statutory declaration dated 23 July 2018, the applicant’s special consideration request form dated 23 March 2018 together with emails to and from the applicant and his education provider and also submissions dated 22 November 2019 from the applicant’s migration agent.
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
The applicant is a 32 year old Pakistani national. He gave evidence at the hearing that he came to Australia to study an MBA. He said that his father was doing business in Pakistan importing and exporting halal meat, a business that he started in 2010. The applicant had completed a Bachelor degree in Pakistan and then went to work for his father before coming to Australia to study. However, upon commencing his studies in Australia, he found the MBA difficult so he was advised to transfer into a Bachelor of Accounting. He said an education agent pushed him to enrol in a hospitality course, which did, however upon attending the college he found it to be of a poor standard.
There is no evidence presented at the hearing, nor in the department’s file that the applicant came to Australia for any purpose other than to study. The Tribunal gives this some weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant’s said in his statutory declaration that when he started studying in early 2015, he was attending class regularly but struggled in the college atmosphere and the mode of study. He decided to change to a different institute. He enrolled in a hospitality course however he found this to be of a low standard and decided to un-enrol in this course. He then enrolled in a Bachelor of Accounting at Australian Institute of Higher Education Sydney. Around this time, his family pressured him to return home and get married.
In January 2016, he deferred for one semester and returned to Pakistan to get married. He married on 20 February 2016 and returned to Australia a week later without his wife.
In January 2017, his father had a heart attack and he returned home to Pakistan again. The applicant stated in his evidence at the hearing that his he found that his father was ill and so he left Australia on 24 January 2017 to return to Pakistan. He said that his father is the head of the family and that he saw his father on a ventilator in hospital during a video call with family members. When he arrived his father in Pakistan his father was still on the ventilator. He said it took 2 or 3 weeks before he was allowed to see his father in hospital.
He stated at the hearing that the college informed him in the first or second week of March 2017 that his enrolment was going to be cancelled. The applicant said it took him about week to gather his father’s medical documents to show the reason for his absence from classes.
On 23 March 2017, the applicant sent a special consideration request form to Australian Institute of Higher Education and provided evidence of his father’s medical condition. He requested special consideration due to his father’s heart attack. He wrote an email confirming the issues with his father and stated that he was requesting special consideration for some more leave. He confirmed that he had purchased a return flight to Australia for 17 April 2017 and that he would be re-joining the college straight away. He received an received an email on the same day from his college advising him that his enrolment had been cancelled.
While he was in Pakistan, his father requested that he take his wife back with him to Australia. He complied with his father’s wish and in April 2017 returned to Australia with his wife. Not long after arriving, he and his wife attended a doctor and discovered that she was pregnant. He said that his wife was vomiting and very nauseous during her pregnancy. She spent all day lying down and he would have to do all the work around the apartment and tend to his wife. She was having a difficult time with the pregnancy but refused to go to see a psychiatrist.
Their baby was born on 26 March 2018. In around August 2018, his wife and their child returned to Pakistan. They made the decision to return prior to the delegate’s decision cancelling the applicant’s visa. Since then, the applicant enrolled in an MBA at GCA College, which commenced on 27 August 2018, however he found the subject very difficult. He asked to change subjects and was told this would happen, however a week later his enrolment was cancelled.
The Tribunal noted at the hearing that the applicant had stated in his statutory declaration that the issues with his wife’s pregnancy and her condition, he “totally forgot to go to college and devoted my time to taking care of my wife, staying at home and keeping her happy”. When asked about this at the hearing, he stated that he did not forget to go to college. But with is wife’s difficult pregnancy and his father’s heart attack and medical condition, he was having difficulties with his studies. In particular, his father’s business was struggling after his heart attack and his father was unable to send money to him to cover his tuition fees. Although there were no documents provided to support the applicant’s evidence about his father’s business struggling, the Tribunal accepts that this would be a likely outcome given the seriousness of his condition and the length of time he spent in hospital. The Tribunal also accepts that his wife’s difficult pregnancy (being their first pregnancy experience) would have added pressure and stress to the applicant.
There have been significant periods of time when the applicant was not enrolled in a course or study. And while the applicant’s evidence does not cover in their entirety these periods of time, the Tribunal accepts that the applicant’s father’s ill health and the resulting financial difficulties in paying tuition fees as well as the problems with the applicant’s wife’s pregnancy meant that maintaining enrolment has been difficult.
Accordingly, the Tribunal gives this significant weight in favour of not cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. However, the applicant has been in breach of condition 8202 for a significant period of time. He was last enrolled in the MBA on 23 March 2017. It was not until 27 August 2018 that he enrolled in a new course, however this course was at a level lower than the Master course for which he was originally granted the student visa. Furthermore, he has now enrolled in a Graduate Certificate, which is at a level below the Master degree.
The applicant still remains in breach of condition 8202(2) in that he has not complied with 8202(2)(b), which requires the applicant to maintain enrolment in a registered course that, once completed, will provide a qualification at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. Accordingly some weight is given in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said that his mother had passed away on 4 February 2019 and that he could not go to her funeral as he was on a bridging visa. He said that is how important completing his studies are to him, that he would miss his mother’s funeral. He said that he is the only family member overseas studying and his family members constantly criticize him for this. However he said that he is sticking to his plan to study. The applicant did not mention any financial hardship.
The Tribunal accepts that the applicant will suffer some emotional hardship if he has to return to his home country without completing the course of study he now intends on completing and accordingly gives this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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 gave no evidence about any legal consequences for him, nor did he make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight in favour of not cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. Although the applicant is married and has one child, his wife and child are not secondary applicants and do not reside in Australia having returned to Pakistan. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
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 Subclass 500 (Student) visa.
Elizabeth Tueno
Member

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

[2019] AATA 5691

3 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice