Mohammed (Migration)

[2019] AATA 3652

Mohammed (Migration) [2019] AATA 3652 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yousuf Mohammed

CASE NUMBER:  1703285

HOME AFFAIRS REFERENCE(S):           BCC2017/218568

MEMBER:Wendy Banfield

DATE:29 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2019 at 5:30pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – genuine temporary entrant – applicant ceased studies – limited academic progress – health concerns – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course of study as required by the conditions of his Student Visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 27 years old. He was granted a Subclass 573 Student Visa on 6 August 2015 to study higher education in Australia. The applicant did not maintain enrolment for a period of 9 months and as a result, his visa was cancelled on 16 February 2017.

4. The history of the application before the Tribunal is as follows:

   ·     On 24 February 2017 the applicant applied for a review of the decision to cancel his visa.

   ·     On 4 March 2019 the applicant was invited to attend a hearing scheduled for 25 March 2019.

   ·     On 24 March the applicant sent a medical certificate issued by General Practitioner Dr Abulkalam Mohiuddin stating the applicant was suffering from a medical condition and would be unfit for his normal duties from 24 to 30 March 2019 inclusive.

   ·     On 25 March 2019 the Tribunal wrote to the applicant advising his hearing had been postponed and on 26 March 2019 the applicant was invited to a hearing on 14 May 2019.

   ·     On 13 May 2019 the applicant contacted the Tribunal by email and advised he still had a medical condition such that he could not speak or move from his bed. He requested another date for his hearing and attached a medical certificate from General Practitioner Dr Muhammad Virk stating the applicant was unfit for normal duties from 3 to 6 May 2019 inclusive. A further medical certificate from Dr Mohiuddin was also submitted stating the applicant was unfit for normal duties from 9 to 14 May 2019 inclusive.

   ·     On 14 May 2019 the Tribunal wrote to the applicant advising his hearing had been postponed and he was invited to attend a hearing on 28 May 2019. The invitation advised that no further postponements would be granted and if the applicant did not attend the scheduled hearing, a decision may be made without any further consideration of the application.

   ·     On the same day, 14 May 2019 the applicant contacted the Tribunal by phone stating 28 May was too soon for a hearing. He was reminded that he had been advised no further postponements would be granted and that the hearing was two weeks away. The applicant sent an email, also on 14 May 2019 stating it would be very hard for him to attend a hearing on 28 May 2019 as he needed time to recover from his medical condition; he was depressed, was going through a stressful period and required 6 to 8 weeks to recover.

   ·     On 15 May 2019 the applicant was contacted by phone and was told his request for another postponement had not been granted and the hearing would go ahead on 28 May 2019.

   ·     At 9.14pm on 27 May 2019 (the hearing was scheduled for 10.30am the next day, 28 May 2019) the applicant sent an email to the Tribunal advising he could not concentrate on a hearing and requested a postponement of a further 3 to 4 weeks. He attached another medical certificate issued by Dr Mohiuddin stating the applicant is suffering from anxiety and needs rest from 24 May to 6 June 2019.

   ·     The Tribunal was not satisfied the applicant’s medical evidence disclosed a valid reason why he was not able to attend a short hearing to present his case to the Tribunal. However, since the Member received the applicant’s information shortly before the time of the hearing at 10.30am, it was decided to give the applicant one further chance to attend a hearing either in person or by phone the next day, 29 May 2019.

   ·     On 28 May 2019 the Tribunal attempted to contact the applicant twice by phone to advise he was required to attend a hearing on 29 May 2019 at 2.00pm either in person or by phone but there was no answer and no option to leave a message. The applicant was sent a further hearing invitation advising he must attend the Tribunal the next day, on 29 May 2019 or be available by phone. Also on 28 May the applicant was sent an SMS message advising him of the hearing date and time the next day and referring him to the invitation sent to his email address.

   ·     On 29 May 2019 the applicant did not appear before the Tribunal. The Tribunal hearing officers attempted to contact the applicant by phone at 2.04pm, 2.05pm and 2.30pm but there was no answer.

5. Due to the applicant’s continual failure to appear before the Tribunal either in person or by phone, the Tribunal decided to make a decision based on the evidence available.

6. The applicant did not submit any evidence to the Tribunal in support of his application for review. The Tribunal has taken into account the evidence provided to the Department prior to the visa being cancelled in this decision.

7. Evidence submitted to the Department consisted of the following:

   ·     Emails from the applicant to the Department dated 20 January and 6 February 2017;

   ·     Letter of Offer from Elite Education Institute dated 24 October 2016 for a Bachelor of Business (Professional Accounting);

   ·     Letter from Dr Muhammad Virk dated 4 April 2016 referring the applicant to Dr Rasiah Yuvarajan;

   ·     Letter from Dr Rasiah Yuvarajan, Consultant Psychiatrist dated 4 April 2016;

   ·     Letter of Offer from Group Colleges Australia dated 20 January 2017 for a Master of Business Administration;

8. 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

9. 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?

10. 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).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. On 18 January 2017 the Department sent an email to the applicant seeking consent to send a letter to the applicant’s email address regarding his Student Visa. On 20 January 2017 the applicant replied to the Department to advise that he had been studying in Australia but due to depression, he had not been able to continue. In the email the applicant advised he had a letter of offer and was in the process of obtaining a new COE. On 30 January 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) because he had not been enrolled to study since 12 April 2016. The applicant provided a response on 6 February 2017 stating he did not maintain enrolment because he was deeply depressed.

13. The applicant did not dispute that he had not been enrolled to study for the relevant period, 12 April 2016 to 30 January 2017 when the NOICC was issued by the Department. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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

15. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

16. The applicant did not provide evidence of a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

    There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

17. The applicant did not provide any evidence about the degree of hardship that may be caused if his visa is cancelled.

18. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

19. Condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course. This is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, including temporary gaps in enrolment. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of 9 months. The applicant provided reasons in response to an email from the Department on 18 January 2017 and the NOICC issued on 30 January 2017. The applicant claimed that due to depression, he was not able to maintain enrolment. He provided brief letters from a GP and a psychiatrist dated 4 April 2016 but did not provide evidence of a detailed mental health assessment. There is no evidence the applicant engaged in further counselling or therapy from March to June 2016 or at all, as referred to in the psychiatrist’s letter. 

20. There is no evidence the applicant sought assistance from his education provider at the time or that he applied for compassionate leave. The Tribunal is not satisfied the applicant provided adequate reasons for remaining in Australia while failing to comply with the mandatory conditions of his student visa for a significant period of time. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

21. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.

    ·     whether there would be consequential cancellations under s.140

22. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

23. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

24. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. There is no evidence the applicant has any children whose interests need to be considered.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

25. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

26. The Tribunal assessed the applicant’s evidence to the Department of a Letter of Offer from Elite Education Institute dated 24 October 2016 for a Bachelor of Business (Professional Accounting) and a Letter of Offer from Group Colleges Australia dated 20 January 2017 for a Master of Business Administration. Although one copy of the letter from Elite Education Institute appears to have been signed and dated 28 October 2016, there is no evidence a Confirmation of Enrolment certificate was ever issued.

    Conclusion

27. The Tribunal has considered the applicant’s circumstances individually and cumulatively and finds the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Wendy Banfield
    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.