Khan (Migration)

[2019] AATA 3468

Khan (Migration) [2019] AATA 3468 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sulaiman Khan

CASE NUMBER:  1729710

HOME AFFAIRS REFERENCE(S):          BCC2017/2997874

MEMBER:Christine Kannis

DATE:8 March 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 08 March 2019 at 6:28am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – maintaining enrolment in a registered course – eligible higher degree student – applicant ceased studies – unsatisfactory course progress – evidence of ongoing medical conditions – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

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 22 November 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 of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments.

5. 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

6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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.

   Does the ground for cancellation exist?

7. On 5 February 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion requiring the visa holder to be enrolled, it has been held that this requires the visa holder to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

8. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994. The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 5 February 2014.

9. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

10. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111.

11. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Business was cancelled on 3 February 2017.  The reason for cancellation was indicated to be “Unsatisfactory course progress”. The delegate found the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a Subclass 573 visa by the Minister in an instrument made under r.1.40A.

12. On 11 October 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516. A response was received on 23 October 2017. The applicant did not dispute the ground for cancellation existed but requested his visa not be cancelled due to extenuating circumstances.  

13. At the time of responding to the NOICC the applicant provided CoEs for a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, both of which were created on 16 October 2017. He also provided a CoE for a Bachelor of Arts created on 17 October 2017. 

14. Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applied at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times. The use of the term ‘would satisfy’ the criteria, suggests that it applied as if the criteria were being assessed as the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a Higher Education Sector course, the applicant breaches condition 8516 of the visa. 

15. The Tribunal acknowledges that the applicant obtained a CoE for a Bachelor degree course following receipt of the NOICC.  This was created eight months after his enrolment in the Bachelor of Business was cancelled. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite any subsequent re-enrolment.

16. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business was cancelled on 3 February 2017 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

18. 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’.

19. In his response to the NOICC the applicant provided the following information:

    ·There were extenuating circumstances beyond his control. The only reason for not complying with visa condition 8516 was his ongoing medical condition of depression. He has been treated for depression since July 2014.

    ·He was enrolled in four units in Semester one in 2014 and he achieved a High Distinction for one unit but was unable to sit the exams for the remaining units due to anxiety and depression. He hoped to feel better in the next semester and enrolled in two units commencing February 2015. 

    ·In March 2015 he had a motor vehicle accident. He suffered extreme back pain which meant he could not sit in one place for longer hours. This affected his concentration and ability to sit for longer hours and to study. As a result he failed the units again. This was repeated in the third semester.

    ·He tried reducing his unit load to one unit in the hope he could clear one unit but by that time he had lost confidence worsened by his anxiety and depression. He sought further treatment in the second semester of 2016.

    ·Due to his inability to pass the units because of his medical condition his CoE was cancelled in February 2017.

    ·Adding to his mental/emotional instability was his grandfather’s demise in early 2017.

    ·During this period he realised he needed to rethink his career options as his medical conditions were limiting his ability to pursue a career in Accounting. His back pain would not allow him to study any course which required extended study hours.

    ·After discussing his options with his father he decided to join a course in Hospitality. His family owns a restaurant and this course would help him to join the family business. The Hospitality course required less time sitting in a classroom situation which helped alleviate his back pain. Therefore he decided to complete Certificate III,IV and Diploma of Hospitality. After completion of these courses he would gain relevant skills to work in the restaurant in the family owned hotel in Pakistan.

    ·He was not aware that he was required to reapply for a new visa with his new CoE, however is now aware but still intends to complete a higher education course.

    ·He also did not re-apply for a Vocational CoE because he always intended to complete higher education (a Bachelor degree) in his chosen career. After rethinking and rechoosing his career path, after completion of his Diploma of Hospitality he intended to study a Bachelor of Business to help him with his administration skills to use when operating his family business.

    ·He wishes to remain in Australia to complete his studies in Diploma of Hospitality followed by a Bachelor of Business, to provide him with the relevant skillset and opportunity to work in the commercial kitchen within his family Hotel leading towards being in a position to exercise overall control of the business.

20. When responding to the NOICC the applicant provided the following medical evidence:

    ·A letter dated 20 April 2015 from Ms Simone Brambilla, Physiotherapist. Ms Brambilla said the applicant had been referred to her for acute neck and back pain following a motor vehicle accident (the accident) on 3 March 2015. She started him on an active exercise program and said he was going well. She said his neck pain had almost disappeared but he was still experiencing low back pain after driving one to two hours. She created a structured rehabilitation program to improve the endurance and stability of his low back pain.

    ·A report dated 13 July 2015 from Dr J Calabro. Dr Calabro said he first saw the applicant on 3 March 2015 following the accident. On 6 March 2015 he complained of lower back pain. He was sent for x-rays which reported no cervical spine or lumbar abnormality. Dr Calabro asked him to rest from his usual job of taxi driver. On 18 March 2015 he complained of persisting neck and upper back pain and was referred for physiotherapy treatment. He informed Dr Calabro that since 14 March 2015 he had returned to work as a taxi driver doing reduced hours of three hours per day. On 1 May 2015 the applicant said he was still experiencing lower back pain and his neck pain had settled down with the help of physiotherapy. He said he could cope with about four hours per day driving.

    ·A letter dated 28 October 2015 from Ms Brambilla in which she said the main trigger for the applicant’s back pain was prolonged seating. He reported his back pain started after four or five hours of driving and said he had no pain in the morning or after sleep.

    ·Medical Certificates from Dr M A Mustapha for the periods 1 July 2014 to 30 July 2015 and 12 August 2016 to 21 December 2016 certifying the applicant was suffering from depression and was unfit for duty.

    ·A letter from Dr M A Mustapha dated 19 October 2017 stating the applicant had been under his care for depression since 2 August 2016 and continues for further management and said prognosis was unsure.

21. The applicant told the Tribunal that when he commenced his Bachelor of Business in 2014 he was highly motivated however he only passed one unit in the two and half years he was enrolled in the course. He said he was unable to pass any other units because of his depression and anxiety and this resulted in his CoE being cancelled.

22. The Tribunal asked the applicant to describe how his depression and anxiety impacted on his ability to study. He said when he sat in a classroom he felt everyone was looking at him. He said he felt anxious when he was in these crowded classrooms. The applicant said he may have felt like this because it was his first time attending at university level and this “upper level” was different to the previous study environments he had experienced. He said he decided to change to a “lower level” and study Cookery. The applicant said this was a friendlier environment and he had friends in the course. He said this made his study a smoother experience. He studied Cookery for eight months in 2017, from March until his visa was cancelled in November.

23. The applicant also told the Tribunal that after being unable to pass units in the Bachelor of Business course he decided to return to “lower level” to see if he could do well in those courses.

24. The Tribunal asked the applicant about the impact, if any, of the injuries he sustained in the accident on his ability to study. He said the accident affected his brain condition because of the “scariness” of the accident. No medical evidence was provided to support this contention.

25. Noting that the medical evidence from Dr Mustapha is dated in 2014, 2016 and 2017, the Tribunal asked the applicant the reason he attended Dr Calabro following the accident. He said he believed every doctor was the same and so he did not need to see his Dr Mustapha who he said was his GP at the time.

26. Noting that Dr Calabro’s report did not refer to the applicant’s depression and anxiety the Tribunal asked the applicant whether he told Dr Calabro about these conditions. He said he did mention them but he decided to see Dr Mustapho about them because he thought Dr Calabro “was not treating them well”.

27. The applicant told the Tribunal that the Cookery classes he attended in 2017 did not require him to sit in a classroom for long periods because the course involved a lot of practical work in a kitchen. The Tribunal asked him about the contact hours for the Bachelor of Business. He said there were two classes per day. They were one hour in duration and sometimes there was a laboratory class of 45 minutes duration.

28. The Tribunal noted that in his response to the NOICC the applicant said he needed to rethink his career options as his medical conditions were limiting his ability to pursue a career in Accounting and he said the Hospitality course required less time sitting in a classroom situation which helped alleviate his back pain. The Tribunal pointed out that in May 2015 he reported to Dr Calabro that he was able to drive for four hours per day and that in October 2015 he reported to Ms Brambilla that he was able to drive for four or five hours per day.

29. The Tribunal put to the applicant that his taxi driving hours in 2015 were longer in duration than the hours he was required to sit in a classroom. He said he could stop driving if he was in pain however he would have to sit through a class if he was in pain.

30. The Tribunal asked the applicant about the treatment he has received for depression. He said in July 2014 he attended Dr Mustapha. He was prescribed tablets, the name of which he did not know, and commenced taking the medication in August 2014. He took the tablets for three months and stopped taking them for two months. He restarted the tablets in early 2015 and stopped again sometime in 2015. He returned to Dr Mustapha and asked for stronger and more effective medication. He could not recall when he returned to Dr Mustapha or the name of the stronger medication prescribed.

31. At hearing the applicant provided invoices from Dr Syed Jehan dated 30 July 2018, 6 August 2018 and 8 October 2018. The applicant said he is currently taking medication for depression as prescribed by Dr Jehan. He did not know the name of this medication. The earlier invoice referred to the item as “GP Mental Health care consultation”. The applicant said he consulted Dr Jehan following his mother’s death. The applicant said the later invoices were in relation to attendances for a stomach problem.

32. Noting that Dr Mustapha had treated his depression since 2014 the Tribunal asked the applicant the reason he did not consult him after his mother’s death. He said Dr Jehan is from Pakistan and so he speaks the same language and he thought he may be able to understand him more.

33. Given the applicant’s evidence that his depression and to a lesser extent his back pain were the reasons he was unable to successfully complete the Bachelor of Business units the Tribunal asked him whether he considered seeking a deferral of his study from his education provider at any time in 2014, 2015, 2016 or 2017. There is no evidence to indicate that the visa holder sought or was granted a deferral from study. He was unsure of whether he sought a deferral but said he told one of his teachers about the discomfort he felt in the classroom and how he felt the other students were all looking at him. He said he spoke to the teacher in the first half of 2015 and the teacher told him he was doing great and told him to take his time.

34. The Tribunal put to the applicant that more than eight months elapsed between the cancellation of his enrolment in the Bachelor of Business on 3 February 2017 and the issuing of the NOICC. The Tribunal pointed out that he had held two Subclass 572 visas previously and he was aware of the different education levels for Higher Education Sector course and Vocational Education and Training Sector courses. He said he was not aware he was not permitted to study in the lower level on his visa and said nobody told him about condition 8516. The applicant conceded that condition 8516 was in the “written” part of his visa and said he read the main conditions but did not go through and read all the conditions.

35. The applicant told the Tribunal that since cancellation of his visa he has been financially supported by his father. He has been living with family friends. He wants to finish his Hospitality studies including at the Bachelor level and then return to Pakistan.

36. The Tribunal considered the Medical Certificates from Dr M A Mustapha which covered the periods from 1 July 2014 to 30 July 2015 and from 12 August 2016 to 31 December 2016 and certified the applicant was unfit for duty due to his depression. The Tribunal noted that based on the applicant’s self-report to his other health care professionals at the time, he was driving his taxi during the period from March 2015 to October 2015, despite a Medical Certificate stating he was unfit for duty during part of that period.

37. The Tribunal the earlier Medical Certificate covered a period of 13 months. The Tribunal does not accept that the condition of depression can be the basis for unfitness for duty for such an extended period. The Tribunal would expect that if a condition was expected to persist for more than 12 months then treatment, either by medication or therapy, would be undertaken and the patient would be reviewed within a reasonable period.

38. The Tribunal also noted the letter dated 19 October 2017 from Dr Mustapha said the applicant had been under his care for depression since 2 August 2016. The earlier Medical Certificate refers to periods in 2014 and 2015 during which Dr Mustapha certified the applicant unfit for duty due to his depression. Whilst the issuing of a Medical Certificate does not necessarily mean the patient is under the care of the doctor issuing it, this raises concerns regarding the reliability of the evidence.

1. The Tribunal further noted that the letter dated 19 October 2017 from Dr Mustapha indicated the applicant’s treatment was by “further management” and said his prognosis was “unsure”. The medical evidence from Dr Mustapha lacked details regarding the past, present and future treatment and did not provide information about the applicant’s symptoms or how his depression affects his ability to function. If the applicant’s depression has been ongoing since at least 2014 the Tribunal would expect the medical evidence to provide more detailed information.

2. The Tribunal also noted that despite the applicant saying Dr Mustapha was his GP at the time of the accident, he attended Dr Calabro about his injuries.  He said he did this because he believed all doctors were the same. Dr Calabro did not refer to the applicant’s depression in his report. 

3. The medical evidence from Dr Mustapha may be based on the applicant’s self-reported depression only however the lack of detail together with the concerns previously referred to mean that the Tribunal places limited weight on the medical evidence from Dr Mustapha.

4. Regarding the applicant’s contention that the physical injuries sustained in the vehicle accident contributed toward the breach of condition 8516, the Tribunal noted that the medical evidence consisted of reports dated in 2015.  No medical evidence was provided which showed the applicant’s injuries impacted on his ability to undertake study at the time of cancellation of his enrolment on 3 February 2017 or at any time in 2016.

5. Regarding any hardship he will suffer if he has to depart Australia without obtaining a Bachelor of Business qualification the applicant said he will become more depressed and would not see his future as being a positive one.

6. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

7. The purpose of the Higher Education Sector visa is to enable the student to undertake study at a higher education level.

8. The applicant is not currently enrolled in a higher education level course required by his Subclass 573 visa. Prior to the issuing of the NOICC he had not held enrolment in a course of study specified for his visa at the Higher Education Sector (subclass 573) since he ceased studying his Bachelor of Business 3 February 2017.  He subsequently enrolled in a Certificate course below the Higher Education Sector level and PRISMS reveals that since then he has completed a Certificate III in Commercial Cookery. The Tribunal noted this is a course in the Vocational, Education and Training Sector.

9. The Tribunal noted that eight months elapsed between the cancellation of his enrolment and the issuing of the NOICC. The applicant said he was not aware that he was in breach of condition 8516 during the seven month period form the date of cancellation of his CoE on 3 February 2017. The Tribunal considers it was the applicant’s responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions while studying and living in Australia, including the 8516 condition. The applicant would have been advised of his visa conditions at the time of the visa grant.

10. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.  The Tribunal gives this some weight in favour of cancellation.

11. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia and he said to continue his Hospitality studies so he can help his father run his restaurant in Pakistan.

12. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

13. The Tribunal accepts the applicant would suffer a degree of emotional hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

14. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

15. The Tribunal has considered whether the breach arose due to circumstances beyond the applicant’s control. The applicant said his CoE was cancelled because he could not pass the Bachelor of Business units. He said he could not pass because of his depression and the physical limitations arising from the injuries sustained in the accident. The only medical evidence provided with respect to his depression was the Medical Certificates and letter from Dr Mustapha. For the reasons previously discussed the Tribunal placed limited weight on this evidence. In relation to the physical limitations, the Tribunal noted the medical reports stated that the applicant reported being able to drive for extended periods in 2015.

16. The Tribunal had regard to the applicant’s evidence about his discomfort in the university level classes and the friendlier environment of the lower level courses. The Tribunal considers the applicant’s level of comfort and the difficulty of the university level study are more likely to be the reasons for his cessation of the course for which his visa was granted rather than depression. As noted there is no evidence that the applicant sought a deferral and the medical evidence is not persuasive.

17. Accordingly the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

18. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

19. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

20. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

21. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

22. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

23. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which is visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

24. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Christine Kannis
    Member