Murtaza (Migration)

[2020] AATA 2539

Murtaza (Migration) [2020] AATA 2539 (27 May 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Zeeshan Murtaza
CASE NUMBER:		2000717
HOME AFFAIRS REFERENCE:		BCC2019/3523540
MEMBER:		Dr Jason Harkess
DATE:		27 May 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Statement made on 27 May 2020 at 1:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) (Subclass 500) visa – failure to maintain enrolment in registered course leading to qualification from Australian Qualifications Framework – changed from Masters to Diploma course – issues of caring for newborn child and family – son’s autism diagnosis and treatment – request for deferral for Masters course denied – compelling circumstances – decision under review set aside

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Pakistan and is 36 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 10 January 2020 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 25 September 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 21 October 2020 before it was cancelled. It provided for more than two years during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of Business Administration at Group Colleges Pty Ltd.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study that, once completed, would provide him with 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 had been granted.

2. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

3. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 10 January 2020. He also lodged a copy of the decision record when he lodged his review application with the Tribunal on 15 January 2020.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 28 February 2020.

2. The Applicant appeared before the Tribunal by video link to give evidence and present arguments. The Applicant was assisted by his registered migration agent, Mrs Ashrita Zeeshan.

3. The Tribunal received the following documents filed by the Applicant prior to the hearing:

   (a)Academic Transcript from Group Colleges Pty Ltd (trading as Universal Business School Sydney) issued 8 December 2018 relating to the Applicant’s first semester of studies in the Master of Business Administration course, and related Confirmation of Enrolment issued 1 August 2018 (‘CoE’);

   (b)Statement of completion from Universal Business School Sydney issued 6 February 2015 certifying the Applicant’s completion of a Bachelor of Accounting course;

   (c)CoE bearing reference code B2228F50 relating to Applicant’s enrolment in a Graduate Diploma of Management (Learning) at YES College with a proposed course start date of 13 April 2020 and finishing 11 April 2021;

   (d)Birth Certificate issued by the Registry of Births Deaths and Marriages (NSW) certifying the birth of the Applicant’s son in 2015;

   (e)Birth Certificate issued by the Registry of Births Deaths and Marriages (NSW) certifying the birth of the Applicant’s daughter in 2018;

   (f)Marriage Certificate issued by Pakistan authority in relation to the Applicant’s marriage to his wife;

   (g)Several medical documents relating to the Applicant’s son and the son’s diagnosis of Autism Spectrum Disorder;

   (h)Speech pathology reports relating to Applicant’s son indicating a severe language disorder associated with Autism Spectrum Disorder and Global Developmental Delay;

   (i)Statutory Declaration of the Applicant dated 27 February 2020;

   (j)Applicant’s statement of purpose (pertaining to his studies in Australia).

4. Following the hearing, the Applicant filed the following further documents:

   (a)Statutory Declaration of the Applicant dated 5 March 2020;

   (b)Conditional offer of enrolment from Group Colleges Australia Pty Ltd dated 4 March 2020 in relation to Master of Business Administration course and signed acceptance of Applicant.

   (c)Diploma of Leadership and Management issued to the Applicant on 20 May 2020 and associated documentation;

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside in this case. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence and arguments of the Applicant given at the hearing;

   (c)the documentary materials lodged by the Applicant, referred to above;

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[2]

GROUND FOR CANCELLATION

[2] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[3] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

   [3] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

3. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[4]

   [4] The AQF is administered by the Department of Education and Training. See generally <>

   The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(b)?

Delegate’s Allegations and Findings

1. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, a Master of Business Administration at Universal Business School Sydney. The Master’s course had a start date of 27 August 2018 and end date of 21 August 2020. A Master’s course sits at AQF Level 9.

2. As the delegate’s decision record further notes, on 20 February 2019 Universal Business School Sydney cancelled the Applicant’s enrolment in the Master’s course. The Applicant subsequently enrolled in Diploma of Leadership and Management at MVJ Enterprises. That Diploma course sits at AQF Level 5, which is four levels below the AQF Level at which a Master’s course sits. The Applicant’s enrolment in the Diploma course did not restore the Applicant’s visa enrolment status to a non-breaching position.

3. The Tribunal further notes that the Applicant enrolled in a Graduate Diploma of Management at MVJ Enterprises Pty Ltd after he was issued a Notice of Intention to Consideration Cancellation on 27 November 2019 by the Department (‘the NOICC’). However, this enrolment also did not restore the Applicant’s situation to a non-breaching position because Graduate Diplomas sit at AQF Level 8.

4. The delegate had determined that that the Applicant was in breach of Condition 8202(2)(b) for the period 20 February 2019 to 10 January 2020 (being the date of cancellation). This amounted to almost 11 months during which the Applicant was in continuous breach of his visa.

Applicant’s Response to Allegations

1. The NOICC sent to the Applicant on 27 November 2019 set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

2. The Applicant responded to the NOICC in writing on 11 December 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

3. At the hearing before the Tribunal on 28 February 2020, the Applicant admitted that he was in breach of Condition 8202(2)(b) for the period 20 February 2019 to 10 January 2020.

Conclusion

1. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (e.g., whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances

1. In his NOICC response, the Applicant explained the circumstances of his breach of Condition 8202 as follows:

   (a)When the Applicant applied for his student visa, his wife was 38 weeks pregnant with his daughter. There was no family to support his wife following her birth other than himself. He assumed the burden of caring for his recovering wife, his son and his newly born daughter while at the same time attempting to maintain his studies. It was very difficult.

   (b)The Applicant commenced the first semester of his studies at Universal Business School Sydney a few weeks after his daughter was born. He undertook three units in the Master’s course and managed to pass two of those units.

   (c)When his next semester of studies was due to commence in 2019, his son had just been diagnosed with Autism Spectrum Disorder. The Applicant was having to engage with a number of medical specialists during this time. He provided medical reports to the delegate corroborating his claims in this respect. Those records suggest that certain aspects of the Autism Spectrum Disorder diagnosis were quite severe.

   (d)The Applicant requested a deferral of his studies from the course provider, but that request was refused. The Applicant became very distressed.

   (e)The Applicant highlighted the significant stress that was being caused by his son’s Autism Spectrum Disorder diagnosis.

2. At the hearing before the Tribunal, the Applicant gave evidence that was largely consistent with that which he had expressed in his NOICC response. In particular, attention was drawn to the considerable impact that his son’s Autism Spectrum Disorder diagnosis has had on his own mental health and his ability to successfully progress with the Master of Business Administration course. For that reason, the Applicant appears to have ceased his studies in that course and downgraded to something that was more manageable, namely a Diploma of Leadership and Management.

3. The Tribunal accepts that managing his family’s situation in Australia, without any extended family support, would have been very stressful for the Applicant and his wife. The medical records relating to their son’s Autism diagnosis suggest that his delay in speech development is quite severe. The Tribunal finds that the diagnosis, and the actuality of having to deal with their son’s condition on a daily basis, would have presented as a considerable burden for the Applicant. That burden would no doubt have been experienced before the formal diagnosis itself. It is likely the Applicant would have been experiencing parental worry and anxiety associated with his son’s Autism throughout 2018, and this would have been significantly exacerbated with receipt of the formal diagnosis in early 2019. It is an experience that most parents are lucky enough to avoid. However, in this case the Applicant has obviously had to deal with it. The situation was out of his control. The circumstances are extenuating. This weighs in favour of not cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The Applicant’s student visa was granted to allow him to complete a Master’s course - not a Diploma, nor a Graduate Diploma. His decision to pursue and complete a Diploma course was not contemplated by the visa grant. His enrolment in a Graduate Diploma did not restore the Applicant’s visa situation to a non-breaching position.

2. The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully complete a Master’s course as the visa originally contemplated. There is still some time left in visa if it were to be restored. In his statutory declaration made on 5 March 2020 the Applicant stated that he has taken steps to arrange to re-enrol in the Master of Business Administration at Group Colleges Pty Ltd (trading as UBSS). He disclosed that he had received a conditional offer from UBSS in this regard and that he had accepted the offer. He produced evidence of that offer and his acceptance of it. He stated that the course was to commence on 11 May 2020.

3. By the time the Tribunal came to determine this matter 11 May 2020 has passed. The Tribunal has, today, conducted a check of the PRISMS international student database to ascertain whether the Applicant is currently enrolled in that Master’s course. He is not. However, the Tribunal has also contemplated the possibility that the Applicant may not be in a position to enrol in the course and be issued with a CoE by the course provider until he receives a favourable outcome from the Tribunal in relation to the review application. In this regard, the Tribunal has given him the benefit of the doubt. He has clearly evinced an intention to recommence his Master’s course and the Tribunal accepts his undertaking to do so. It is on this basis that the Tribunal has proceeded to make a determination in his favour now.

Extent of First Applicant’s Compliance with Visa Conditions

1. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions of this visa and previous visas issued. There is no information before the Tribunal that suggests that previous allegations have been formally made against the Applicant for non-compliance with his visa conditions.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal acknowledges that both the Applicant and his family will suffer some degree of emotional harm and disappointment if his visa is cancelled and he is forced to return to their home country. Their son, who has Autism, will no doubt find the transition from one country to another particularly difficult.

First Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard. The Tribunal further notes that the Applicant has taken all necessary steps to assist the Tribunal in resolving the review application as quickly as possible.

Other Visa Holders

1. The Tribunal has taken into account that the visas of the Applicant’s wife and two children will remain cancelled by the operation of law if his visa remains cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. The Tribunal considers these consequences unduly punitive in the circumstances of this case.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is of the view that the Applicant’s visa should not be cancelled. The delegate’s decision should be set aside. The Tribunal notes that this decision is made on the basis of the Applicant will now take immediate steps to enrol in and successfully complete the Master’s course which is now the subject of conditional enrolment. If he fails to do so, he will remain in breach of his visa and the Tribunal accepts that the Department may take steps to cancel his visa again.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member