Mohammadhu Rinsan (Migration)

Mohammadhu Rinsan (Migration) [2020] AATA 1806 (5 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Atheeque Mohammadhu Mohammadhu Rinsan
CASE NUMBER:  1932236
HOME AFFAIRS REFERENCE(S):          BCC2019/3261862
MEMBER:Vanessa Plain
DATE:5 March 2020
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 05 March 2020 at 11:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered higher level course ceased – family bereavements – limited academic progress – applicant changed to vocational course – no compelling need to remain in Australia permanently – reasonable steps to rectify the breach – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
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 5 November 2019 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 failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. 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 3 February 2020 to give evidence and present arguments. .
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(2)(b) 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 provides as follows:
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
[...]
(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.
Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
The applicant’s visa was granted for the purpose of studying a Diploma of Information Technology and a Bachelor of Networking at the Melbourne Institute of Technology which is an AQF level 7 course.
The applicant’s enrolment in the Bachelor of Networking was cancelled on 17 November 2017. Prior to its cancellation, he completed the Diploma and some subjects in his Bachelor Degree. However, tragedy struck his family at home in Sri Lanka in mid 2017. His grandmother and his uncle both died. The Tribunal has had regard to two death certificates which corroborate the applicant’s evidence. This caused him immense distraction from his studies and tremendous distress. He consulted a physician who recommend complete rest in late 2018. The Tribunal has had regard to a medical report obtained at the relevant time, which corroborates the applicant’s evidence.
The applicant consulted with his education provider regarding a deferral, however was unsuccessful. He returned home in 2018 and again sought medical attention to alleviate his grief. At the time of his return home, his sister was suffering from a life threatening illness. The Tribunal has had regard to further medical documents relating to the applicant’s sister’s illness in 2018.
Upon his return to Australia, the applicant attempted to enroll in another Bachelor of Networking, but due to a cancelled CoE, was unable to obtain the Bachelor level enrolment. His two uncles operate a prestige car dealership in Japan. As the eldest of several sons, he decided to enroll in automotive studies, rather than not study at all if he couldn’t get into a bachelor course. So he ultimately enrolled in a Certificate III and IV in Automotive Studies and a Diploma of Automotive Technology on 16 August 2018. That course was an AQF level 5 course. He successfully completed the Certificate III and was undertaking Certificate IV when he visa was cancelled and he lost his study rights.
At the hearing, the applicant acknowledged that he breached his visa condition. He acknowledged that he responded in writing to the Notice of Intention to Consider Cancellation of this visa dated 19 September 2019, but again reiterated that he tried to re- enroll in another Bachelor degree but due to his cancelled CoE, this did not materialize.
The applicant was distressed at being in breach of his visa and again sought counseling in mid 2019, prior to receipt of the NOICC. In fact, he took a month’s bed rest in June 2019 on the basis of medical advice. The Tribunal has had regard to a medical certificate dated 17 June 2019 which corroborates the applicant’s evidence.
The applicant did not make excused for breaching his visa condition. He was embarrassed and visibly distressed throughout the course of the hearing. He gave honest, candid and credible evidence as the matters set out above. His evidence was consistent with contemporaneous documents.
On the evidence before the Tribunal, the applicant has not complied with condition 8202(2)(b).
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’.
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
As set out above, the applicant has demonstrated a diligent attitude to his studies and successfully completed his studies until tragedy struck his family.
Although the purpose for which the visa was granted ceased when he ceased to be enrolled in an AQF level 7 course, the Tribunal is satisfied, based upon the evidence set out above, that he has demonstrated that his primary purpose for being in Australia is for the purpose of study and that he has no compelling ties to the community that would incentivise him to wish to remain here on a permanent basis.
On the basis of the above, I therefore find that the applicant has no compelling need to remain in Australia permanently and that he has demonstrated his primary purpose as being to study. I give these factors a little weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(b). He candidly acknowledges the breach. However, as set out above, I find that the applicant had a compelling reason for the breach that arose out of circumstances not reasonably within his control, namely, deaths in his family caused significant grief for which he received extensive medical treatment. He took all steps reasonably possible to defer his studies and re-enrol in the correct course, but to no avail.
Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled.
Further, there is no evidence of any breach of other visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave compelling and credible evidence of the emotional and psychological hardship that he would endure if he had to return home in circumstances without having completed his studies properly.
As the eldest of 5 sons in a country like Sri Lanka, if he returned home without the qualification he returned to Australia to achieve, it would cause him tremendous hardship with his parents.
The Tribunal therefore accepts that the cancellation has led to some personal detriment for the applicant, which has undoubtedly been exacerbated due to the anguish he has experienced given the matters set out above.
The Tribunal further accepts that the detriment would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The circumstances that led to the cancellation of the applicant’s visa are set out above. Those circumstances are supported by contemporaneous documents and medical evidence. The Tribunal considers that in the circumstances, the applicant has demonstrated that he took all reasonable steps to rectify the breach of his visa condition.
The Tribunal has had regard to the circumstances surrounding the breach and I find that it cannot sensibly be suggested that the above matters did not contribute significantly towards the applicant’s breach of his visa condition. The Tribunal finds that there are compassionate reasons for the breach of the visa condition and that these matters were not reasonable within the control of the applicant.
Further, there is no evidence that the applicant has acted imprudently, or attempted to avoid his studies. On the contrary, the Tribunal commends the applicant for the candour with which he has given evidence about matters which clearly have caused him great distress.
The Tribunal therefore gives the above evidence significant weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department. This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department and with contemporaneous medical and other documents produced by him. I give this weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete his automotive studies before returning home, which would be a compete waste financially. Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled.
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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are not further matters before the Tribunal to take into account.
As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by compassionate reasons not reasonably within his control. It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.
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.
Vanessa Plain
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.

[2020] AATA 1806

5 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice