Mirza (Migration)

Mirza (Migration) [2023] AATA 3280 (1 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Imran Siddiqhee Mirza
Mrs Afeefa Naaz
REPRESENTATIVE:  Mr Anusha Kilaru (MARN: 1678008)
CASE NUMBER:  2212137
HOME AFFAIRS REFERENCE(S):          BCC2022/1862620
MEMBER:Rachel Westaway
DATE:1 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 01 September 2023 at 4:47pm
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course of study – discretion to cancel visa – wife’s pregnancy complications and birth of twins, COVID, lockdowns and travel restrictions, and financial stress – currently in home country with mother undergoing medical treatment – intention to continue and complete course – member of family unit – automatic cancellation of wife’s visa with no jurisdiction to review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 August 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that that the applicant was not enrolled in a full-time registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 30 August 2023 at 9:30am to give evidence and present arguments.
The applicants were represented in relation to the review.
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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Background
The applicant is a 32-Year-old male from India
The secondary applicant is 29-year-old female.
The applicant was granted a TU-500 visa on 7 May 2021.
Tribunal Application
The applicant lodged their application for review on 19 August 2022. They provided the Department of Home Affairs decision record and notification letter, along with their application for review.
Department of Home Affairs Application
On 06 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.
On 12 July 2022 the applicant responded giving the following reasons as to why the visa should not be cancelled:
·The applicant came to Australia in August 2013 to study.
·The applicant completed primary, secondary and a Bachelor’s degree in Information Technology in India.
·The applicant worked as a Developer Programmer between 2011 and 2013.
·The applicant then decided to come to Australia to study a Master of Information Technology. He finished his master’s degree at Central Queensland University in 2016.
·The applicant was then granted a Temporary Graduate (subclass 485) visa to complete a Professional Year Program at Monash University.
·The applicant was unable to obtain employment in his field and enrolled in courses at Southern Cross Institute of Education to acquire the necessary managerial knowledge.
·The applicant ‘s wife became pregnant with twins and experienced a number of complications.
·The applicant could not concentrate on his studies and stopped attending classes.
·The applicant decided to continue his studies due to the advantage(s) of having an Australian qualification.
·The applicant started his Diploma of Leadership and Management, however, he was unable to study as he was suffering from [Condition 1] due to: the Covid-19 pandemic; border closures; lockdowns; no family support; sleepless nights; financial stress; and the birth of twins.
·The applicant’s family in India were affected by the Covid-19 pandemic.
·The applicant started to see a doctor for [Condition 1] on 01 December 2021.
·In January 2022, the applicant’s wife caught Covid-19.
·The applicant’s family went to India on 15 March 2022, however, this made him [lonely].
·The applicant’s situation has improved, he has enrolled in a new course and is attending classes.
·The applicant did not breach the conditions of his previous Student (subclass 500) visa and completed his Masters of Information degree.
·The applicant wants to remain in Australia to study due to the benefits of the life style and experience he can get here.
·The cancellation of his visa will negatively affect his career development, his marriage, his wife’s career development, his family back in India, and his health.
·The applicant wants to complete his studies and return home. He has spent a lot of money on his Australian education and wants to complete his course.
The visa holder provided the following document in support of these claims:
- Academic Transcript from Central Queensland University dated 22 August 2016.
- Master of Information Technology from Central Queensland University dated 25 July 2016.
- Notification of Completion from Central Queensland University dated 09 August 2016.
- Bachelor of Technology from Jawaharlal Nehru Technology University dated 09 January 2013.
- Provisional Certificate from Jawaharlal Nehru Technology University dated 12 November 2012.
- Passport, Imran Siddiqhee Mirza, date of birth [Date].
- Certificate of Completion from Monash College dated 11 May 2018.
- PTE Academic Score report dated 22 June 2020.
- CoE Graduate Diploma of Management from Flinders International College.
- Birth Certificate, Affan Ali Baig Mirza, date of birth [Date]
- Birth Certificate, Inshirah Aayat, date of birth [Date].
- Positive Covid-19 test result text message for ‘Afeefa’ dated 03 January 2022.
- Blank picture document titled ‘Wife exam.heic’.
- Medical Certificate dated 09 July 2022, for 01 December 2021.
- Bachelor of Medicine and Bachelor of Surgery from Dr. NTR University of Health Sciences, for Afeefa Naaz, dated 28 July 2018.
- Form 956.
- NOICC response submission.
On 15 August 2022 the Department notified the applicant that his visa was being 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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
According to PRISMS the applicant last completed a Diploma of Project Management on 1 June 2020.They were then enrolled in an Advanced Diploma of Project Management from 5 August 2019 – 3 August 2020, which they deferred due to compassionate or compelling circumstances and then enrolled once again in the same course from 29 June 2020 – 28 June 2021, this was also cancelled due to non-commencement of studies.
The applicant then enrolled in a Diploma of Leadership Management from 31 August 2020 – 29 August 2021, which was also cancelled this time due to non-payment of fees.
They were also enrolled in an Advanced Diploma of Leadership Management from 27 September 2021 – 29 January 2023, this was cancelled due to non-commencement of studies.
The applicant attended the Tribunal hearing and confirmed he was enrolled in a registered course of study during the periods outlined above.
On the evidence before the Tribunal, namely the applicant’s own admission, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
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 Procedural Instruction ‘General visa cancellation powers’.
The applicant provided the Tribunal with a submission dated 29 August 2023. In summary the submission stated the applicant arrived in Australia in August 2013 with a genuine intention to complete his studies. He had attained a bachelor’s degree of Information Technology from India in 2012 and worked as a Developer Programmer from May 2011 through to August 2013. In order to expand his career opportunities, he applied for a visa to study a Master of Information Technology. He completed his Masters in July 2016 and applied for Temporary Graduate (class VC) (Post study work visa) (subclass 485) visa which was granted and undertook a Professional Year Program from 2017 to March 2018 at Monash University. He claims he found it difficult to obtain employment but was unsuccessful and believed it was due to his lack of managerial knowledge and skills.
The applicant stated he decided to study a Diploma of Project Management and Advanced Diploma of Program Management at Southern Cross Institute of Education and applied for a student visa. However, his wife became pregnant with twins.
The applicant stated at hearing his wife studied medicine in India and was a doctor. He claims she suffered with pregnancy related issues and then COVID came and they had no support from family and borders were closed and whilst private planes were able to be hired it was difficult and they all felt vulnerable. He claims he started to develop signs of [Condition 1] and after the delivery of the twins he claims his wife suffered from [Condition 2]. He stated he could not concentrate on his studies and eventually stopped attending classes with his family’s needs overwhelming him.
He claims he was not able to focus on his studies as he was going through [Condition 1] with the stress of a new family and no support, border closures & lockdown due to COVID and sleepless nights. He stated he also felt huge financial stress. He also stated he was worried about his family in India with COVID. In discussions with his wife, he went to see a doctor on 1 December 2021 for [Condition 1] and provided a letter from the doctor who confirmed the applicant presented with symptoms of [Condition 1]. He stated that when the borders opened in January 2022 he attempted to send his wife and twins back to India so he could concentrate on his studies but on January 3, 2022, she and the twins contracted COVID. He provided a text message confirming his wife’s positive test.
He claimed he sent them back to India on 15 March 2022 but this contributed to his [Condition 1] and feelings of isolation. He said his wife was worried about him and returned to Australia leaving the twins in India with family.
The applicant claims he returned to classes for one month and then his visa was cancelled and he was unable to continue.
He then departed Australia in February 2023 as his mother was diagnosed with cancer in India. The applicant provided evidence of the diagnosis.
He claims his wife is currently undertaking her AMC medical exams in India to enable her to obtain work experience around the world.
The applicant claimed he has never breached any visa conditions prior to this.
He stated he completed his Master of Information degree and has always been a genuine student. He stated that he has no history of crime, or any cases registered against him.
His submission went on to state Australia is a safe place to live and the cost of living is much cheaper compared to other countries and by studying and living and working in Australia during his studies he will develop better communication skills and build networks. He wants to gain experience in Australia and believes Australia has the best education systems for him and will provide him with a global perspective which will be highly regarded by employers and open excellent opportunities into the future.
He believes if he is unable to complete his studies in Australia he will not have an edge on other applicants for work and his master’s degree still doesn’t give him the experience he needs to be as successful as he wants because he is aiming for technical project manager roles in future. He provided employment ads from India to demonstrate the experience he would like to obtain in Australia and that which is required for the type of roles he would like to apply for. In summary he stated both a management degree and experience are mandatory to secure a better position in India.
The applicant attended the hearing and reiterated the issues above. He spoke with detail and clarity about the issues he faced in the lead up to his non enrolment. He accepted that he was not enrolled in a registered course and claims his twin daughters are older and COVID has passed and his family are able to support him and he believes there is nothing that would impact his [health] like he experienced before. He claims he had never experienced these stresses before and is unlikely to experience them in the future and was committed to completing his studies.
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 has demonstrated that he has the capacity to compete a master’s degree when in Australia and would like to complete further studies in project management in Australia stating that the overseas experience and recognition of Australia’s quality education system would give him an edge over other applicants when seeking employment when he returns to India. The applicant is currently overseas in India as his mother is seeking treatment for cancer. The applicant would like to return to complete his studies.
The Tribunal notes that the applicant has successfully completed some studies and has demonstrated a commitment to these which supports his claim that he has the capacity to study and an interest in the field of study which he would like to build on. The Tribunal appreciates that the applicant would prefer an overseas education and the benefits this may bring to his CV however he could undertake studies in India.
The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
the extent of compliance with visa conditions
The visa holder has not been enrolled in a registered course of study between 18 August 2021 and 17 June 2022 and therefore is non-compliant with visa condition 8202. The Tribunal therefore gives this consideration significant weight in favour of cancelling the visa.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The visa applicant has been in Australia for approximately 10 years undertaking his studies. He has returned to India during this period and is currently visiting India as his mother is undergoing treatment for cancer.
The applicant has had his twin daughters in Australia and has likely developed ties with the community. He has claims he does not have relatives in Australia. He claims he has spent a significant amount of money on his education and would like to complete this.
In considering these factors the Tribunal gives these a little weight in favour of not cancelling the visa.
circumstances in which ground of cancellation arose
The Tribunal has considered that the visa applicant’s wife became pregnant and they discovered she was having twins. The twins were delivered in September 2020 in the middle of Victoria’s lockdown and the applicant and his wife had no family support. They were unable to leave the country and the applicant’s wife was pregnant prior so was unable to travel. When the borders opened the applicant stated that his wife and twins contracted COVID which again delayed their departure. The applicant claims to have been overwhelmed and suffering [Condition 1]. These factors have all been supported with documentary evidence. The applicant states that his wife suffered [Condition 2] however there is no documentary evidence to support this. Whilst the Tribunal notes that the non-enrolment period was between August 2021 and June 2022, the arrival of the twins and the applicant’s wife’s inability to return to India and compounding pressures culminating in confirmation of the applicant’s [Condition 1] symptoms in December 2021 support the applicant’s claims and contributed to his pressures that ultimately led to his non-enrolment.
The Tribunal has considered the unpredictable pressures the applicant was under having twins and no family support and his [Condition 1] and by the time these had compounded he was unable to leave Australia. The Tribunal gives these factors significant weight against cancelling the visa.
past and present behaviour of the visa holder towards the department
The applicant has responded to the NOICC and has confirmed he was not enrolled in a registered course of study. Whilst the Tribunal notes that the birth of children is a natural occurrence and many students may face this, the Tribunal also recognises that the applicant had twins and this occurred during COVID and he had no family support in Australia. He presented at the time with symptoms of [Condition 1]. Some of these factors were beyond his control. There is nothing further before the Tribunal to suggest the applicant breached other conditions on his visa.
The Tribunal gives this consideration a little weight in favour of not cancelling the visa.
whether there would be consequential cancellations under s 140
The applicant’s wife is the secondary applicant on his visa and as such her visa would also be cancelled. The applicant’s wife is a trained doctor and currently undertaking medical exams to work overseas should the opportunity present. The applicant claims that a cancellation of their visas would impact her ability to apply successfully in the future for a visa to other countries with her husband and children.
The Tribunal gives this consideration a little weight in favour of not cancelling the visa.
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

The visa applicant is currently overseas. If the visa is cancelled the visa holder would not hold a valid visa for re-entry into Australia. He may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period.
The Tribunal gives this factor a little 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].)
The applicant has twins born in Australia however they are currently residing in India with their parents. As such the family unit would not be broken up should the visa be cancelled.
The Tribunal gives this factor no weight in its considerations.
The Tribunal has reviewed the applicant’s file and conducted a hearing with the applicant and considered the submissions put forward. In consideration of the reasons put forward both individually and collectively, particularly the circumstances and timing of the breach, namely it being during Victoria’s lock down and the applicant having twins and suffering [Condition 1], the Tribunal gives these factors significant weight in not cancelling the 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 first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.
Rachel Westaway
Senior 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.

[2023] AATA 3280

1 September 2023

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal