MOHAMMED (Migration)

[2020] AATA 385

MOHAMMED (Migration) [2020] AATA 385 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. SHAHBAZ KHAN MOHAMMED

CASE NUMBER:  1834519

HOME AFFAIRS REFERENCE(S):          BCC2018/4032630

MEMBER:P. Adami

DATE:9 January 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 09 January 2020 at 4:07pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – genuine medical conditions – applicant did not seek to stay enrolled –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 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).

2. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course in breach of condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate considered that the factors against cancellation did not outweigh those factors in favour of the cancelled visa.

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

4. The applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages. The Tribunal has had regard to the oral evidence of the applicant and all the information and documents submitted by the applicant.

5. The applicant was represented in relation to the review by his registered migration agent, Mr. Ming Zhao.

6. The applicant is a 32 year old Indian male who arrived in Australia on 20 January 2018 to study a Master of Professional Accounting at the University of New South Wales. The applicant currently holds an Overseas Student Confirmation of Enrolment (COE) for the Diploma and Advanced Diploma of Leadership and Management at the Institute of Business and Management Australia. The applicant expects to complete his studies in December 2021.

7. 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

8. 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?

9. 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).

10. The applicant was sent a Notification of Intention to Consider Cancellation (NOICC) letter on 15 October 2018. The Tribunal understood from the applicant that he did not receive the NOICC; in any event, the Tribunal has not received a copy of any response to the NOICC.

11. Mr. Zhao on behalf of the applicant told the Tribunal that the applicant’s COE for the Master of Professional Accounting degree was cancelled on 22 March 2018, and that the applicant obtained a COE for his currently enrolled Diploma and Advanced Diploma on 16 November 2018. Mr. Zhao further told the Tribunal that the applicant’s visa was cancelled on 20 November 2018 as per the delegate’s decision in this matter. Mr. Zhao stated that it was “common ground” that the applicant had not been enrolled in a registered course for approximately 8 months.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for the period March to November 2018. Accordingly, the applicant has not complied with condition 8202(2) and the visa was liable to cancellation under s116(1) of the Act.

    Consideration of the discretion to cancel the visa

13. 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 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

14. The applicant told the Tribunal that the purpose of his travel and stay in Australia was to study which would brighten his future and brighten his family’s name.

15. 'Compelling' and 'Need' are words that ought to be given their ordinary meaning having regard to the purposes of the legislation. They are not defined in either the PAM3 or the Act.

16. In Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204, Crennan J (then sitting as a judge on the Federal Court) considered the definition of the word ‘compelling’ in the context of the Migration Regulations 1994 (Cth). The Regulations in Paduano allowed for an applicant to be eligible for a return residence visa if they had been absent from Australia for a continuous period of five years or more since their most recent visa if “compelling reasons for the absence” were provided. Crennan J considered that the Migration Review Tribunal (MRT) had erred in its construction of “compelling reasons for the absence” because the Migration Review Tribunal determined that the applicant had not demonstrated a compelling reason because the reason did not “demand or rouse strong attention, interest or admiration or tend to demand action.” Crennan J found that the MRT, although it had considered the definition of compelling, it had applied too strict a meaning of the word.

17. Crennan J set out the many definitions of the ordinary use of the word ‘compelling’. Her Honour stated at [35], p212, “A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.” Her Honour concluded at [37], p213 that ‘compelling’, when considered in the legislative framework regarding the visa regime, “is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”.” Her Honour concluded that there was nothing in the relevant subclause which indicated that compelling should be construed narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing, or which indicate that compelling includes an involuntary element, involving circumstances beyond a person’s control or necessity (see [37], p213). Crennan J held that the Tribunal had erred in law and granted the application for review- at [57], p216.

18. Following Paduano, given the word ‘compelling’ is used in a visa context and there is nothing that restricts the meaning of compelling, the Tribunal considers that the applicant might be able to demonstrate a ‘compelling’ need to travel to or remain in Australia in the various ways in which the definition of compelling creates. The Tribunal considers a compelling need may be as a result of a physical, legal or moral necessity; by reason of convincing and/or forceful submission; or as a result of demonstrated circumstances that see the applicant acting as a result of part involuntariness.

19. The definition of ‘need’ is also not without its trouble because it too has multiple meanings. The Shorter Oxford English Dictionary (5th edition) defines that ‘need’ means something that is desirable or recommended. Another meaning listed in the same dictionary, states that ‘need’ should be accorded the meaning of “necessity”- a required course of action. The Tribunal considers that the use of the word ‘compelling’ to qualify the need suggests that the applicant must have circumstances that are more than a  mere want to study in Australia, but something less than a necessity to study in Australia. If this were not so, the qualifier ‘compelling’ would have little work to do as a compelling necessity would tend to be tautological. The Tribunal considers that the compelling need that is to be assessed in regard to PAM3 amounts to an assessment as to whether the applicant has a forceful reason to travel to or remain as a student in Australia, which is more than a want to study but less than a necessity to study in Australia.

20. The Tribunal considers that the applicant has not established with the Tribunal a physical, legal or moral necessity; nor a forceful submission; nor demonstrated circumstances that see the applicant acting as a result of part involuntariness. The Tribunal does not consider that the applicant’s reasons of brightening his future (which the Tribunal takes to mean obtaining a qualification which will assist in improving the applicant’s future career plans); or the reputational credit his family name might receive upon his return home having successfully completed his studies, are compelling needs in the various ways ‘compelling’ (as set out above) might be used to define the need in the PAM3.

    The extent of compliance with visa conditions

21. The Tribunal accepts that the applicant has not engaged in any other conduct breaching his visa conditions, and the Tribunal finds that the applicant has only breached condition 8202. The period of non-enrolment is significant and the Tribunal considers that although the breach of visa conditions is limited to condition 8202, condition 8202 is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study.

22. The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

23. When asked about this factor, the applicant explained to the Tribunal that there were various ways in which the hardship touches upon his application. The applicant stated that he had spent a lot of money of his studies; he will suffer a loss of face with his family; his career will be spoiled; and depression may arise should he not be able to continue with his studies. The applicant also told the Tribunal that he works as a delivery driver earning approximately $270-$300 net per week.

24. The Tribunal accepts that the applicant and his family may suffer some hardship if the applicant’s visa remains cancelled. The Tribunal considers that it is understandable that the applicant will feel that he has wasted his time and money, and may suffer a loss of face with his family. However, it was the applicant’s failure to proactively and positively manage his affairs in Australia that has resulted in his visa being cancelled. The Tribunal does not consider that the applicant’s career is spoiled given he has the benefit of the study completed, and the applicant did not provide the Tribunal with any material in support of his claim that depression may arise should his visa remain cancelled. Without more, the claim that depression may arise cannot be meaningfully weighed by the Tribunal. The Tribunal considers that had the applicant contacted his education provider and/or the Department about his circumstances, then he may have avoided the visa cancellation that gives rise to this application in the first place.

25. On the evidence before the Tribunal, the Tribunal considers that the financial, psychological, emotional hardships are not significant or onerous, and the Tribunal gives minimal weight to them in favour of not cancelling the applicant’s visa. The Tribunal further considers that the weight attached to this factor in the exercise of discretion in favour of the applicant is to be tempered given the applicant’s inaction in seeking a deferral of his studies, or otherwise ensuring his enrolment status was maintained.

    The circumstances in which the ground of cancellation arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

26. The applicant produced the most evidence in relation to this factor and made the most emphasis of it. The Tribunal considers that this factor is the weightiest factor in favour of the applicant. The applicant told the Tribunal that he came to Australia with a slightly bad back which condition worsened in Australia. The applicant told the Tribunal that the pain in his back suddenly increased.

27. In September 2017, the applicant obtained an MRI (Magnetic Resonance Imaging) of his spine. Dr. Srinivas Chandra, radiologist noted the existence of certain disc bulging in the “L4-L5 & L5-S1 discs causing thecal sac indentation.” In January 2018, the applicant travelled to Australia to study. The applicant explained to the Tribunal that he saw Dr. Shashidharan Rao, a doctor in Hyderabad, India in June 2018, who indicated that travel and study in Australia should not be a problem. It is apparent from the medical material filed by the applicant that his back was abnormal from at least September 2017. On 20 June 2018, having seen Dr. Naim Islam, General Practitioner in Australia, the applicant had an MRI which also indicated disc bulging in the applicant’s back. Dr. Melvin Chew, Radiologist, concluded that the applicant had bulging of various degrees at the C3/4, C4/5 and C5/6 and C6/7 levels of his back. Dr. Chew also concluded the applicant suffered from nerve root “stenosis”. The applicant described that the pain in his back increased so much that he could not get up from bed. The applicant was recommended no treatment other than bed rest, which improved the applicant’s back.

28. The Tribunal considers that the applicant’s back condition was genuine and debilitating for him. The applicant was suffering from a verifiable back condition. The Tribunal is sympathetic to the applicant and was assisted by the material supplied by the applicant evidencing his ill health. However, the Tribunal considers that a genuine student in the applicant’s circumstances would have been more proactive about maintaining the correct status as an international student in Australia. The applicant did not provide the Tribunal with any evidence as to steps that he took in seeking to defer or pause his studies on medical or compassionate grounds. The applicant was suffering from a genuine back condition but did not seek to stay enrolled. The applicant did not provide to the Tribunal any evidence that he was unable to appropriately deal with his enrolment with his education despite his back condition. That is, the applicant did not provide evidence that prior to, or during the period of his non-enrolment (March- November 2018), he could not contact his education provider or the Department to explain his health situation, and protect his status.

29. The Tribunal considers that a genuine student in the applicant’s position would have contacted, or had someone contact his education provider explaining and evidencing his inability to study and preserve his enrolment status. The Tribunal is mindful that study was the primary basis for the applicant travelling to Australia.

30. Noting the existence of the applicant’s back condition, as set out above, the Tribunal gives this factor strong weight in favour of the applicant’s visa being cancelled.

    Past and present behaviour of the visa holder towards the department

31. The applicant has not responded to the NOICC. The applicant however did attend the hearing. There is no evidence before the Tribunal that the applicant had been uncooperative with the Department. The Tribunal asked the applicant if he had any response to this factor, and the applicant stated that he received the 20 November letter (the Tribunal considers this the 2018 letter which enclosed the delegate’s decision), and that there was no behaviour from his side which could be said to be uncooperative, and he Tribunal accepts this.

32. The Tribunal gives this factor minimal weight against the applicant’s visa being cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

33. There are no other persons whose visa would or may be cancelled under s140 of the Act. The Tribunal considers this factor is not relevant in determining applicant’s application.

    Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

34. The Tribunal asked the applicant whether he had any comment on this factor. The applicant did not propose any consequences and the Tribunal considers that the ordinary results are likely to follow. This may mean that the cancellation of the applicant’s visa may result in the applicant becoming an unlawful non-citizen and may therefore be liable to detention and removal under the Act should he not voluntarily depart Australia.

35. Further, if the applicant’s visa was cancelled under s116 of the Act, the applicant will become subject to s48 of the Act which will result in the applicant having limited options to apply for further visas in Australia. The applicant would also be subject to the Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of 3 years from the date of the cancellation.

36. The Tribunal finds that there are mandatory legal consequences which would impact the applicant should he not voluntarily return to his home country. The Tribunal considers that this factor weighs against the exercise of discretion in the applicant’s favour not to cancel his visa, as these consequences are the intended outcome of a finding that a breach of a visa should result in the cancellation of that visa. The Tribunal gives this factor no weight towards 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

37. There is no information before the Tribunal that any international obligations would be breached as a result of visa cancellation. As a result, the Tribunal considers this factor not to be relevant in determining the applicant’s application.

    Any other relevant matters

38. Mr. Zhao in his submissions on behalf of the applicant at the end of the hearing stated that the Tribunal had asked all relevant questions of the applicant, and that it was common ground that the applicant was not enrolled for approximately 8 months, and that the applicant was in breach of his visa conditions. Mr. Zhao stated that there were 5 relevant matters and 4 irrelevant matters that the Tribunal needed to consider.

39. Mr. Zhao submitted that it was open to the Tribunal to find that the applicant is a truthful and credible applicant, and that it was open to the Tribunal to find that extenuating circumstances existed in regards to the applicant’s situation. That is, it was the applicant’s back issues that prevented him from studying and that at law the visa ought not to be cancelled. The Tribunal raised the issue as to whether the applicant emailed or wrote to his education provider about his situation, but Mr. Zhao said the applicant did not have any correspondence of this sort. The Tribunal asked if the applicant provided copies of any medical material to his education provider, and Mr. Zhao said no medical information was provided to the applicant’s course provider. Mr. Zhao concluded his submissions by stating that the applicant wanted to just finish the Diploma and Advanced Diploma and thereafter return to his home country.

1. The circumstances in which the ground of cancellation arose has been set out and considered above. The Tribunal does not take issue that the applicant was truthful or credible, or that he wishes to complete his studies and then return home. However, the Tribunal considers that much weight ought to be given to the applicant’s conduct after arriving with, and then suffering further injury to his back, which is set out and considered above, and which addresses the main thrust of the way in which the applicant framed his application to the Tribunal, including Mr. Zhao’s submissions.

2. There were no other relevant matters raised by the applicant that stood alone and required consideration by the Tribunal. As a result, the Tribunal considers this factor not to be relevant in determining the applicant’s application.

3. Having carefully considered the circumstances of the applicant and weighing them with reference to the above considerations, as a whole the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   P. Adami
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.