Mohammadi (Migration) - [2024] AATA 2961

Mohammadi (Migration) [2024] AATA 2961 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sahera Mohammadi
Mr Mohammed Muster Uddin
Miss Aizah Fatima
Master Mohammed Ismail Uddin
CASE NUMBER:  2213796
HOME AFFAIRS REFERENCE(S):          BCC2022/1845802
MEMBER:Rachel Westaway
DATE:8 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 August 2024 at 10:41am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – course cancellations – English competency tests – accommodation issues – family health and mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 348, 359
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 September 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 visas were 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 applicants.
The applicants appeared before the Tribunal on 25 September 2023 at 10:30am to give evidence and present arguments. The Tribunal also received oral evidence from Mr Uddin , the applicant’s husband. The applicant’s children were in attendance and the applicant confirmed they would not provide oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
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
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 31-year-old female from India.
The secondary applicants are Mohammed Muster Uddin who is 35-year-old male, Mohammed Ismail Uddin, a one-year-old…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mohammadi (Migration) [2024] AATA 2961
Case: [2024] AATA 2961
Decision Date: 8 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mohammadi, the holder of a Student (Temporary) (Class TU) visa, and her secondary applicants. The dispute concerned the decision by the Department of Home Affairs to cancel the applicant's visa. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). This condition requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) because she was not enrolled in a full-time registered course. Evidence indicated that her enrolment at Danford College was conditional on her providing an English language certificate, which she failed to do. While the applicant provided reasons for her difficulties, including pregnancy, childbirth, and postpartum depression, these did not excuse the failure to meet the enrolment requirements. The Tribunal also noted that her CoE was not cancelled due to non-payment of fees, but rather due to her failure to meet English language requirements.

The Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal stated it had no jurisdiction with respect to the secondary applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 31-year-old female from India. The secondary applicants are Mohammed Muster Uddin who is 35-year-old male, Mohammed Ismail Uddin, a one-year-old male and Aizah Fatima, a seven-year-old female. The applicant was granted a TU-500 visa on 06 November 2020.Tribunal Application The applicant lodged their application for review on 17 September 2022. They provided the Department of Home Affairs decision record and notification letter with their application for review. On 18 September the applicant submitted the following documents to the Tribunal:·A written explanation as to why she was not able to study and that she wishes to continue to study in Australia.·Job offer letter from RUSHLEE PTY LTD dated 17 July 2020.·Emails between applicant and Danford college in relation to payment of fee dated 10 December 2020.·Emails from Danford college letting the applicant know her CoE was being cancelled due to non-payment of fees dated 16 December 2020.·OSHC Insurance Email.·Emails between applicant and Lennox College in relation to student ID dated 8 February 2021.·Applicant’s overseas health cover, 4 October 2020 – 3 March 2023.·VCAT notice of hearing from real estate agency dated 22 January 2021.·Application by a landlord for VCAT hearing dated 22 January 2021.·VCAT notice of hearing, hearing dated 4 May 2021.·Notice to vacate from real estate agency dated 5 January 2022.·Receipt from Coburg medical centre dated 28 April 2021, 22 June 2021, 23 March 2021 and 31 May 2021.·Invoice from new medical imaging dated 15 June 2021, 24 April 2021 and 15 March 2021.·Invoice from the Royal Children’s Hospital dated 26 May 2021, 21 July 2021, 16 August 2021 and 1 September 2021.·Referral letter from the Royal Children’s Hospital dated 30 March 2021.·Photos of newborn child.·Applicant’s son’s birth certificate, DOB: 8 November 2021, dated 6 January 2022.·Letter from Royal Children’s Hospital Son’s Assessment Report dated 11 November 2021.·The review applicant’s Indian passport.·The secondary applicant’s Indian passports.Department of Home Affairs Application On 28 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant. Between 04 August 2022 and 05 August 2022, the applicant provided a response to the NOICC, the applicant provided the following reasons:· The applicant stated that she initially commenced studying at Bayside College but after experiencing problems with the course the applicant made the decision to change education provider to Lennox Institute Pty Ltd which was the same time as she found out that she was pregnant· The applicant stated that while she was pregnant, she was diagnosed with Gestational Diabetes which caused her to experience breathlessness, anxiety and panic attacks· The applicant stated that she tried to seek mental health treatment to deal with her anxiety by visiting a wellbeing community centre· The applicant experienced an emergency C-Section on 08 November 2021 followed by major abdominal surgery where she remained lightheaded for weeks· The applicant stated that her illnesses caused her to feel overwhelmed and incompetent in being a mother and she struggled to get enough sleep while looking after her baby· The applicant stated that during this time she experienced postpartum depression which lasted months· The applicant stated that she reached a point where she decided to try postpartum support classes where she did Yoga and meditation which helped her get to a point where she wanted to get back to her studies· The applicant stated that when she was searching for an education provider to study a Diploma and Advanced Diploma of Leadership and Management she was contacted by the department regarding her visa· The applicant stated that she has now recovered from the postpartum depression and now wants to complete her course and return back to her country with her education completed

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.Rachel WestawaySenior MemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, 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’. At hearing the Tribunal too evidence from Mr Uddin the applicant’s husband and also a secondary holder of the visa under review. She stated that it all started during the COVID lock down and his wife was struggling online and it was hard and she would have given the certificate regarding her English proficiency however it was never requested. He explained that she was dealing with a difficult pregnancy and was at home. He stated that they had previously had other visa options and he originally came to Australia on a subclass 457 visa. He explained he was a chef however he was unable to find an employer that would hire him and sponsor him for a permanent visa. He explained that his wife had a good job was a Network Administrator and she was initially on his visa and then moved to a subclass 482 but was offered a management role and felt she needed more qualifications so applied to study management and then she moved to a student visa. He explained that he then moved to a student visa and now he and his children are also dependents of hers. When asked why she did not study and work he stated that they already had one child and she did not feel she was able to work and study so elected to study. He said they all had options for the future and now they are facing the prospect of returning to India without the experiences they planned. On 27 September 2023 Danford College wrote to the Tribunal and confirmed the applicant’s COE was not cancelled due to non-payment of fees as she had not fulfilled the English language requirements. It stated “At the time of admission, the student was offered a conditional CoE for a pathway with ELICOS and the student failed to provide us with the Upper Intermediate English Language Certificate. English Requirements: International students must provide evidence of English language proficiency to Danford College. Students must have a minimum score of an internationally recognised English test. In Mrs Sahera case, she required and overall score of 5.5 (Depending on the country Risk Level). For Vocational courses students are required to have a minimum IELTS (International English Language Testing Service) score of 5.5 overall with no band/sub score under 5.0 or equivalent English language tests as per accepted by the Department of Immigration. An IELTS score or equivalent no more than two years old or ELICOS with Upper Intermediate or Advanced which she failed to produce.