Mohammed Musavvir (Migration)

[2024] AATA 3340

Mohammed Musavvir (Migration) [2024] AATA 3340 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Mohammed Musavvir

REPRESENTATIVE:  Mr Sukhwinder Singh (MARN: 1685730)

CASE NUMBER:  2217964

HOME AFFAIRS REFERENCE(S):          BCC2022/3708048

MEMBER:David McCulloch

DATE:2 September 2024

PLACE OF DECISION:  Sydney

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 02 September 2024 at 8:33am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – multiple course cancellations and changes – family bereavement – poor academic progress – relationship with an Australian citizen – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 2022 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 (Cth) (the Act).

2. The applicant is a citizen of India born on 25 November 1996. The visa that has been cancelled was granted on 29 July 2020 for a stay period until 15 March 2023

3. The applicant was sent a notice of intention to consider cancellation of the visa (NOICC) on 25 October 2022. The applicant responded on 31 October 2022 with a statement and supporting documents.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 20 August 2024 at 9.30am to give evidence and present arguments. The hearing was held by video using Microsoft Teams.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. 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

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 (Cth) (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 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).

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

11. The delegate’s decision, confirmed with PRISMS records, indicates that the applicant had not been enrolled in a registered course between 1 December 2020 and 27 December 2022.

12. In the hearing the applicant agreed with this period of non-enrolment.

13. 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

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 Procedural Instruction ‘General visa cancellation powers’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

15. The applicant provided the following Statutory Declaration dated 31 October 2022 (not corrected responding grammar):

    1.        I had applied for a student (Temporary) (class TU) student (subclass 500) visa on 15 March 2020.

    2.       On 29 July 2020, I received my visa grant for (Temporary) (class TU) student (subclass 500) from the Department of Home Affairs for my Diploma in Business Administration and Advance Diploma in Business.

    3.       I would like to explain my circumstances in which I breached the condition 8202 of the visas granted to me by not able to complete the courses.

    4.       I came from India in year 2018 in Master of Practicing Accounting in Swinburne University. However, due to lack of support from faculty to individuals, I found it hard to cope up with the pace of studies. So, I changed my course to Master of Professional Accounting in Holmes Institute. My intention from the start was to complete the course and go back to India.

    5.       However, when I joined Holmes college, I experienced similar sort of situation and could not manage study loads and pace of studies. I was struggling again and did not get anything out of the lectures. I was totally confused and was paying fee as well. It was even worst experience because of the course and units I took. I found the institute to be good in terms of delivering the course curriculum, but my problem was the specialization of MPA to become Chartered Accountant. This time I was sure to change studies to foundation level and start it all over again.

    6.       Then I took an admission in Diploma of Business Administration and Advance Diploma in Business. I was clear in my mind to apply visa for Diploma and Advance Diploma, so, that I do not breach my visa condition 8202. So, I apply visa in March 2020 which got granted in July 2020.

    7.       After visa grant, I started my course, and I was studying the course well but here the situation got changed due to COVID and deteriorating health of my grandmother and grandfather. My father used to travel a lot when I was kid and my mother used to do odd jobs. My grandparents took care of me and my siblings. I became very close to my grandparents because they always backed me for my decisions and dreams. I was able to come to Australia for my studies only because of my grandfather because he convinced my father to send me here for studies. My grandmother got sick in year 2020 and had to undergo surgery in 2021. My mind was totally stuck in my grandmother's health and due to COVID restrictions I could not travel to India as well. All the borders were closed, and restrictions were going on. I stayed here but my mind was not in a position to understand anything. COVID restrictions had a hard blow on me as I lost my job during that period. I was only talking to my parents and relatives back home to know about her condition. In between this, my grandfather also got sick and he was on bed as well.

    8.       I was not even recovered from my grandmother's deteriorating health and my grandfather got COVID-19 and was critically ill. He had to be admitted in hospital for his treatment. It hit me like a punch on my face and I was totally down. I was not able to eat or understand anything due to this loss. During this period, I received numerous calls from my education provider, and I am not denying that I did breach visa condition, but my mental health was awful and I could not think straight.

    9.       My grandmother could not handle my grandfather's deteriorating health and she got sick again. She had to be admitted in hospital again for second treatment. She again had to be operated and I was praying for her good health. Thankful to God, that my grandmother survived two major surgeries. However, my grandfather lost his life recently in August 2022. I had been going through a lot since start of 2021 and this is the reason, I could not complete my course and maintain my CoE. After losing my grandfather, I feel empty in my life, and I am not in good space. But, its been 2 months now and  assure you that I will complete my course this time.

    10.      I would like to highlight that I intentionally lodged another visa to change my course to Diploma and Advance diploma to make sure I was not breaching condition 8202. Also, I did not breach any other condition of my visa apart from not completing my course as per requirement. The reason behind this breach is my mental health and COVID restrictions. Apart from that, I am a genuine student and has always complied with my visa conditions.

    11.      Circumstance under which I breached my condition was my mental health. I was in awful mental space because of deteriorating health of my grandmother and death of my grandfather. Both of these factors were not in my control, and I could not meet them because of border closure. I was helpless and clueless. In this kind of mental space, I was only thinking about my loved ones and while doing so, when I breached my visa conditions, I did not even realize.

    12.      I want to submit here that it may look like that I am not a genuine student, but I could not complete my course and breached my visa conditions because there were circumstances beyond my control or due to un-intentional breach.

    13.      I have taken admission in same course in Institute of Business and Management, and I submit that I will be completing my course if I would be given a single chance.

    14.      With this explanation, I am submitting hospital records showing treatments of my grandmother, death certificate of my grandfather and new CoEs of my course.

    15.       I request you to please, take all my circumstances into consideration and not cancel my visa so, I can finish my studies.

16. Provided at the same time with the following documents:

    ·     Death certificate for Mohmd Sami Uddin with a date of death of 12 August 2022.

    ·     Treatment summary undated but with a reference to one of the procedures being done on 9 January 2021 from Apollo Hospitals for Mrs Bibi Maa. She was admitted with chest discomfort. Reference is made to a stent being inserted. Discharge medications are referred to.

    ·     Discharge Summary Gleneagles Global Hospitals dated 14 March 2022 for Mrs Bebi Maa concerning an admission on 11 March 2022. The principal diagnosis is a symptomatic cholelithiasis. Reference is made to a surgical procedure being performed on 13 March 2022.

    ·     Confirmation of Enrolment for the applicant in a Diploma of Business for the course due to start on 21 November 2022. The enrolment occurred on 28 December 2022.

    ·     Confirmation of Enrolment for the applicant in an Advanced Diploma of Business for the course due to start on for December 2023. The enrolment occurred on 28 December 2022.

17. A submission on behalf of the applicant and further supporting documents were provided after the hearing. These, together with the explanations and documents summarised above, are discussed further below in considering various discretionary factors.

    Circumstances in which ground of cancellation is made out – extenuating circumstances beyond the applicant’s control.

18. In the hearing, the applicant reiterated evidence of various difficulties causing non-enrolment. The applicant referred to difficulties due to COVID-19 and difficulties studying online and isolation period of one month. The applicant referred to the illnesses of his grandparents and that both his grandparents have now passed away. The applicant indicated family resources being spent on the medical treatment for his grandparents. All of this created mental health issues for the applicant and caused him not to be able to deal with rectifying his nonenrolment.

19. The Tribunal indicated that no evidence had been provided as to mental health diagnosis or treatment. In response, the applicant indicated that he was treated for mental health issues by his GP who prescribed him antidepressants. Although the GP recommended the referral to a psychologist or psychiatrist the applicant was not in a state to take this up.

20. The Tribunal noted the applicant that it might make allowances for the combination of extenuating circumstances claimed to not be enrolled in a registered course for a limited period of time. However, the period of my enrolment in this case is approximately two years.

21. The Tribunal put to the applicant that it was hard to accept that even if there were the claimed extenuating circumstances that they justify or explain not being enrolled in a registered course for the very long period of approximately two years. This is particularly the case given the if they were medical extenuating circumstances the applicant should have sought a deferral of the course based on those circumstances which would have maintained the requirement to be enrolled in rates course but allowed a break to deal with the relevant extenuating and medical issues.

22. The applicant acknowledged what the Tribunal was saying but maintained the various difficulties causing him not to be in a state of mind for this period to rectify his enrolment status. The applicant indicated that when he received the NOICC this galvanised him into taking action to enrol in a registered course and that he has a genuine desire to progress with a Diploma of Business before undertaking an Advanced Diploma of Business.

23. The submission on the applicant’s behalf provided after the hearing reiterates the applicant is suffering from depression, anxiety and insomnia but when he realised and accepted these mental health issues, the situation was worse. Provided is a letter dated 26 August 2024 from Dr Rafiq Memon, Latrobe University Medical Centre indicating that in July 2021 the applicant was suffering from depression/anxiety and insomnia. It indicates that the applicant went through a lot of mental issues, depression, anxiety and insomnia. He was treated with medications and indicates that the applicant was not able to study during July 2021. He showed signs of improvement from late 2022.

24. The statement from the doctor is recently dated and it is not made clear whether this doctor has treated the applicant during the difficulties claimed in 2021 and beyond.

25. The Tribunal is prepared to accept that there were some mental health difficulties suffered by the applicant caused by the difficulties faced by his grandparents and difficulties caused by COVID-19. However, the Tribunal is not satisfied that these matters causing the applicant mental health problems justify not being enrolled in a registered course approximately two years when there was the option of maintaining enrolment and seeking a deferral on medical grounds.

26. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Purpose of the applicant’s travel to and stay in Australia.

27. The applicant agreed with the fact that he had been in Australia since early 2018 on two student visas. 

28. The Tribunal had written to the applicant on two occasions prior to the hearing requesting that he provides it with evidence of courses successfully completed in Australia and, in relation to courses commenced, but not completed evidence of units passed from course transcripts.

29. No response to this request had been provided. In the hearing the applicant was not clear that such requests have been made but indicated that he had passed units in courses undertaken, albeit not completing any course.

30. The applicant indicated that he initially passed four units in one course before switching providers and passing three units in that course but having difficulties coping with studies in the course that he switched to.

31. The Tribunal gave the applicant an opportunity after the hearing to provide evidence of units passed. In response the applicant provided an Academic Transcript from Swinburne University of Technology of the applicant passing, in 2018, four of four units in a Master of Practising Accounting. The applicant also provided a Notification of Results of a Master of Business Administration of the progress of six units in 2019. There is an exemption for four units and a Transfer Credit for two units.

32. The Tribunal accepts from the evidence provided after the hearing that the applicant passed four units in the Master of Practising Accounting. However, no units were actually passed in the Master of Business Administration with all units being either subject to an exemption or subject to a transfer credit.

33. Even excepting what the applicant indicated in the hearing at face value, the Tribunal had put to the applicant that the fact of him being in Australia since 2018 on student visas and completing any course in that period and only completing seven units is fairly poor progress in studies in Australia. In response, the applicant indicated that he was a good student in his home country and made reasonable progress initially in his studies in Australia before encountering both study difficulties combined with the various other issues identified.

34. The Tribunal considers that even on the applicant’s claims as to study progress made he has made quite poor progress in his studies in his significant period studying in Australia. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Hardship if the visa remains cancelled and compelling reasons to remain in Australia.

35. It is implicit that a key hardship if the visa remains cancelled will be the applicant’s inability to progress with his studies in the Diploma of Business followed by the Advanced Diploma of Business.

36. The applicant indicates that he currently undertakes temporary work for ISS Facility Services as a client services manager.  The applicant has had a significant role in working with a key client, ANZ bank, in a transition for them. The representative indicated that the employer is looking at possibilities for the applicant obtaining a subclass 482 temporary work visas.

37. Written submissions were provided after the hearing confirming that the applicant works as a Client Services Manager for ISS Facility Services where it is submitted he has demonstrated exceptional work ethic and dedication to excellence. A supporting letter has been provided dated 21 August 2024 from Mr Luc Tunbridge, National Cleaning Manager – ANZ Contract, ISS Facility Services Pty Ltd.  The letter indicates that the applicant has shown a strong work ethic and commitment to excellence significantly contributing to the success of in-house cleaning transition within the account. The letter indicates that the company is open to exploring potential these options that would allow the company to retain the applicant.

1. The applicant and representative also indicated that the applicant entered into a relationship in 2021 with an Australian citizen and that both she and the applicant supported each other with depression but they were both suffering. The representative indicated that they were in a de facto relationship and a partner visa had been lodged.

2. It is submitted that there would be significant hardship to the applicant’s Australian citizen partner if the applicant’s visa remained cancelled. 

3. After the hearing, a Statutory Declaration was provided by Ms Gina Metaxiotis who indicates that she is in a de facto relationship with the applicant that began in July 2021 and that they have been living together since September 2001. Ms Metaxiotis previously went through a difficult marriage separation causing her to be diagnosed with depression leading to significant prescription of antidepressants. A letter dated 7 June 2023 from Dr Thomas Valopoulos is provided confirming this.

4. Ms Metaxiotis indicates that since meeting the applicant she has received immense emotional support from him and that he has been instrumental to her recovery. If the applicant has to leave Australia this would significantly disrupt her life.  Ms Metaxiotis observes the applicant’s sincere efforts to succeed in his studies but hurdles as a result of mental health issues.

5. The submission on the applicant’s behalf after the hearing indicates that the applicant did lodge a partner visa in August 2023 and there is a need in the circumstances to establish compelling reasons for the applicant staying in Australia on the basis that his partner is suffering from mental health issues. It is submitted that the applicant still needs to satisfy that he meets the criteria at the time of the grant of the visa. It is submitted that if the visa under review remains cancelled the applicant would find it exceedingly difficult to meet the Schedule 3 criteria, specifically criteria 3004. This requires the applicant indicate that he ceased to hold a substantive visa because of factors beyond his control and that there are compelling reasons to grant the visa. He also needs to demonstrate that he has substantially complied with conditions on his previous visa.

6. Provided after the hearing were supporting statements as part of the partner visa application attesting to the genuineness of the relationship between the applicant and Ms Metaxiotis.

7. Given the evidence, the Tribunal is satisfied that the applicant and Ms Metaxiotis have been in a genuine defacto relationship since 2021, including living together since September 2021. The Tribunal accepts the mental health issues suffered by Ms Ms Metaxiotis which are ameliorated through the support of the applicant.

8. The Tribunal accepts significant hurdles make unlikely that the applicant would obtain a partner visa Australia and would have to leave the country to make an application for a partner visa which would take time to process resulting in a separation for a significant period between the applicant and Ms Metaxiotis. The Tribunal considers that this is a significant hardship to the applicant and Ms Metaxiotis given the Tribunal’s acceptance of the genuineness of the relationship. Tribunal considers that the separation would be particularly acute for Ms Metaxiotis given her mental health issues and that it arises through no fault of her own.

9. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of limitations on his ability to apply for most other onshore visas for a period of three years.

10. A potential hardship for the applicant if the visa remains cancelled could be an unlawful noncitizen, although the Tribunal considers the applicant would have eligibility to apply for a Bridging visa to make his status lawful as he makes arrangements to leave the country.

    Other factors

11. The applicant indicated in the hearing that he does not fear persecution or significant harm on return to India. Thus, Australia’s non-refoulment obligations are not relevant.

12. The applicant indicated that there are no children in Australia whose interests would be affected by the cancellation of the visa. Thus, this is not a relevant factor.

    Summary and weighing discretionary factors

13. Albeit that some allowances have been made for mental health issues caused to the applicant, they do not justify the applicant not being enrolled in a registered course for approximately two years. The applicant also has made poor study progress during his quite a number of years in Australia. These matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

14. The Tribunal is satisfied that the applicant has been in a genuine de facto relationship with an Australian citizen since 2021 and applied for a partner visa in Australia. The Tribunal considers that the various hurdles outlined as to the applicant obtaining the partner visa in Australia make this unlikely that this will occur. Thus, the applicant will need to return to his own country to make a partner visa application resulting in a separation of the applicant and Ms Metaxiotis for a not inconsiderable period. This is a hardship to both the applicant and Ms Metaxiotis given her own mental health issues and the support which the Tribunal accepts that the applicant has had to her in assisting with these.  The Tribunal particularly takes account of the hardship to Ms Metaxiotis of the separation from the applicant as it will occur through no fault of her own.

15. The applicant currently is employed in a job which the Tribunal accepts he is performing well in. The Tribunal accepts the statement by the employer that they would explore options visa options to facilitate the applicant remaining with them.

16. Given the Tribunal does not accept the extenuating circumstances beyond the applicant’s control which fully explain his failure to be enrolled in a registered course for the period in question, and the applicant’s quite poor study history in Australia the Tribunal would need to be persuaded of very significant countervailing factors to determine not to exercise its discretion to cancel the visa.

17. It is a finely balanced decision, but the Tribunal considers the genuine relationship between the applicant and Ms Metaxiotis and the significant hardship to both of them if the visa remains cancelled considering the likelihood that this will result in separation for not insignificant period. The Tribunal particularly takes into account hardship to Ms Metaxiotis as a result of her own mental health issues and the support that the Tribunal accepts that the applicant provides to her.

18. The Tribunal is persuaded that the genuine relationship and the hardships that will be suffered by the applicant and his partner combined with applicant’s current employment and the desire by his employer to explore permanent pathways to remain in Australia outweigh the significant matters adverse to him.

19. The Tribunal in all the circumstances determined not to exercise its discretion to cancel the visa.

20. Considering the circumstances as a whole, The Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    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.