Pathan (Migration)

[2017] AATA 2739

Pathan (Migration) [2017] AATA 2739 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamad Adilkhan Yunuskhan Pathan

CASE NUMBER:  1704798

DIBP REFERENCE(S):  BCC2017/222191

MEMBER:Susan Trotter

DATE:12 December 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 December 2017 at 5:19pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not been enrolled in a registered course – Medical issues – Arranged for further studies

LEGISLATION
Migration Act 1958, s 116(1)(b)
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 9 March 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. Following sending a Notice of Intention to Consider Cancellation (NOICC) on 23 February 2017, to which the applicant responded on 1 and 8 March 2017, the delegate cancelled the visa. This visa was cancelled under s.116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa, namely he had not been enrolled in a registered course of study since 27 June 2016 (condition 8202(2)(a)).

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 14 March 2017.

4. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments.

5. The applicant was represented by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s.116(b), which applies if a visa holder has not complied with a condition of the visa.

8. In this instance condition 8202 attached to the applicant’s visa.

9. Condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3), ‘General visa cancellation powers’ including:

    (a)  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;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which ground of cancellation arose. 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;

    (e)  Past and present conduct of the visa holder towards the department;

    (f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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;

    (g)  Whether there would be consequential cancellations under s.140;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

12. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so,

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

13. The applicant’s evidence to the Tribunal relevantly included as follows:

    (a)  He enrolled in a Bachelor of Engineering at Charles Darwin University before coming to Australia. After arriving in Australia (in July 2013), he completed three semesters and realised it was not the right course for him. Some of his cousins in India are engineers and it was expected that he would follow a similar career path. However, he did not like the course. He passed three or four units and failed three units. The university talked to him about satisfactory progress. He then transferred to a Bachelor of Business at the Holmes Institute in Brisbane. He commenced studies there on 13 July 2017. He was enrolled in three subjects in Semester 1, 2016. He passed one subject and failed two subjects. He started having severe lower back pain in March 2016 which affected his studies. He therefore wanted to reduce his subject load to two subjects for Semester 2, 2016.

    (b)  He went to the doctor about two weeks after the back pain started but did not get a certificate at the time because he thought he would be ok.

    (c)  He went and saw the receptionist at the Holmes Institute in April 2016 requesting a reduction to two subjects. He was asked to provide a certificate. The pain was getting a lot worse and the doctor ordered a CT scan. The scan was done in May 2016 and showed that he had disc bulges. He then asked the Holmes Institute to defer Semester 2. He was waiting for the confirmation of enrolment from them. He was in so much pain physically that he could not go to the college. It was not until September 2016 that he found out that he was not enrolled any longer due to non-payment of tuition fees. However, he paid for tuition fees for two subjects – just not the third subject as he was trying to reduce his study load to just two subjects. Further, oddly, the institute was emailing him on 8 August 2016 regarding a course progress report inviting him to make comments about his academic progress and noting that if he appealed his enrolment would continue during the appeals process. He responded on three occasions to this email so believed that his enrolment continued.

    (d)  By December 2016, he was starting to feel a bit better. He had lost some weight and his pain was getting better. He went to see Patrick at the Holmes Institute but they told him he would have to find a different institution as he had already been given a chance. He then investigated some other options including the Martin Higher Education College and the Kaplan Business School. He now has a confirmation of enrolment from another institution to do a Diploma of Business from 13 November 2017 to 9 November 2018, which will then be followed by a Bachelor of Business. Whilst he cannot yet start study because he does not have a visa, he has spoken to the professor taking the course and has been given some course materials so that he can get started on studying pending a student visa.

    (e)  He knows that he previously failed subjects but he was only putting in 6 out of 10 effort and he knows that he will not be given another chance. He will be putting 100% effort in to his studies. It is very important to his family who are supporting him, including his uncles. He is the only son. His parents expect him to do well in life. So far they have invested $30,000 for him. His father in particular is very upset. Indians put education as the highest priority in life. He recognises that he has to work harder and he has now also dealt with his medical issues, including by losing weight which has helped with his back.

14. Relevant documents from educational providers include as follows:

    (a)  Email from the Holmes Institute to the applicant dated 3 August 2016 in relation to poor academic performance and of the intention to advise the Department of Education. The email provides details regarding a right of appeal and noting that his enrolment continues during the appeals process.

    (b)  Email from the applicant to the Holmes Institute dated 25 August 2016 requesting consideration of his medical condition (with medical certificates provided) and requesting deferral of Semester 2 studies.

    (c)  Email from the applicant to the Holmes Institute dated 19 September 2016 seeking a response to his 25 August 2016 email.

    (d)  Email from the Holmes Institute to the applicant dated 20 September 2016 responding to the applicant’s emails and noting that the applicant’s confirmation of enrolment was already cancelled on 27 June 2016 for non-payment of fees and setting out what was required to again become a student.

    (e)  Email from Kaplan Business School dated 9 March 2017 confirming the applicant’s application for enrolment was not successful.

    (f)    Confirmation of Enrolment for a Diploma of Business starting 13 November 2017 ending 9 November 2018.

    (g)  Email from Alphacrucis College dated 21 November 2017 confirming a provisional offer for the applicant to enrol in a Bachelor of Business from 4 March 2019 to 21 November 2020 contingent upon him obtaining the appropriate student visa.

15. The medical evidence before the Tribunal includes as follows:

    (h)  X-ray report of 3 May 2016 confirming that the applicant had mild posterior annular disc bulges at the L4/5 and L5/S1 levels and scierotic lesions in the right ilium with further investigation suggested.

    (i)    Medical certificate dated 20 May 2016 certifying that the applicant was receiving medical treatment and unfit to continue his usual occupation from 3 May 2016 to 23 May 2016.

    (j)    Medical certificate dated 3 June 2016 certifying that the applicant was receiving medical treatment and unfit to continue his usual occupation from 3 June 2016 to 10 June 2016.

    (k)   Medical certificate dated 27 June 2016 certifying that the applicant was receiving medical treatment and unfit to continue his usual occupation from 27 June 2016 to 4 July 2016.

    (l)    Referral dated 27 June 2016 to Orthopaedic Surgeon.

    (m) Medical certificate dated 4 July 2016 certifying that the applicant was receiving medical treatment and unfit to continue his usual occupation from 4 July 2016 to 8 July 2016.

    (n)  Medical certificate dated 8 August 2016 certifying that the applicant was receiving medical treatment and unfit to continue his usual occupation from 15 July 2016 to 20 October 2016.

    (o)  Medical certificate dated 7 March 2017 certifying that the applicant was well and able to return to studies from 15 March 2017.

    Issue 1 - Does the ground for cancellation exist?

16. As noted in the delegate’s decision, which was provided to the Tribunal by the applicant when he applied to the Tribunal, the applicant was notified of the intention to consider cancellation of the visa on 23 February 2017. It was noted in the NOICC that it had come to the Department’s attention that the applicant had not complied with Condition 8202 imposed on his visa, which required him to be enrolled in a registered course.

17. The delegate’s decision continues on to note that information available to the Department in the Provider Registration and International Student Management Systems (PRISMS) indicates that the applicant had not been enrolled in a registered course of study since 27 June 2016 and therefore it appeared that the applicant did not meet the requirements of condition 8202(2)(a).

18. PRISMS is also accessible by the Tribunal and shows that the applicant was no longer enrolled in or subject to a current offer of enrolment in a principal course relevant to a higher education sector visa after his enrolment was cancelled on 27 June 2016.

19. The Tribunal is satisfied that the applicant has not been enrolled in registered course since 27 June 2016, in breach of condition 8202(2)(a).

20. It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(b) of the Act. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised?

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia

22. The applicant was granted this visa to undertake higher education studies in Australia, thus his purpose for travel and stay in Australia.

23. The evidence before the Tribunal is that the applicant is no longer enrolled in a higher education course and has not been since 27 June 2016, a period of nearly eight months as at the date of the NOICC. However, there is no evidence that the applicant has breached other conditions of his visa, and the evidence to hand as to his continuing contact with educational providers and the current offers are indicative that the applicant wishes to study in compliance with his relevant visa conditions.

24. Taken in the context of the original purpose of his presence in Australia being to undertake higher education studies, the Tribunal considers the fact that the applicant is no longer enrolled in a registered course of study to weigh in favour of the visa being cancelled. However, the Tribunal puts some weight on the circumstances in which the applicant came to be unenrolled being related to medical issues, as evidenced by medical evidence before the Tribunal. Further, the Tribunal is satisfied that the applicant has made subsequent efforts to again be enrolled in a registered course, and that he has a current offer of enrolment, subject to holding a student visa.

25. The Tribunal has considered the circumstances in which the breach occurred in this case. In particular, the applicant has presented medical evidence consistent with the back issues which impacted upon him from March 2016. Whilst it is also of some concern that the applicant was not displaying satisfactory academic progress, the Tribunal is satisfied that at least for Semester 1 of 2016, his academic results were also likely affected by the medical condition impacting upon him from March 2016. Further, the evidence is that the applicant was in contact with the institution where he was studying attempting to obtain a deferment due to his medical condition. It is not entirely clear what has transpired in that regard, however, it is clear that the educational institution was providing inconsistent details to the applicant and the Tribunal is satisfied that the applicant was not aware that his enrolment had been cancelled until September 2016. Further, whilst the cancellation of enrolment was for non-payment of tuition fees, the Tribunal is satisfied that this was linked to the applicant’s medical issues in that he had paid for two subjects and had requested permission to only undertake two subjects rather than three subjects because of his medical issues. Having regard to all of these matters, the Tribunal finds that the circumstances of the breach in this case do not weigh towards the visa being cancelled.

26. The Tribunal also considered the degree of hardship that may be caused to the applicant and any family members. The Tribunal accepts that the applicant’s family has invested a substantial amount of money in his studies in Australia and that some reliance is being placed upon him as the only son in his family. The Tribunal places some weight on these matters in the applicant’s favour.

27. The Tribunal also considered the applicant’s past and present conduct towards the department. Notably, the applicant promptly responded to the NOICC and there is no material before the Department to indicate that the applicant has been deliberately uncooperative or untruthful in his dealings with the Department. The Tribunal gives some weight to the applicant’s conduct as weighing against cancellation of the visa.

28. There is no evidence that there would be consequential cancellations in this case.

29. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancelation.

30. If the applicant’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

31. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which of themselves mean that the visa should not be cancelled.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds the breach to be significant, as the applicant had, as at the date of the NOICC, not been enrolled in a registered course of study for nearly eight months, in circumstances where his reason for being in Australia was to study. However,  the Tribunal accepts that the medical issues the applicant experienced from March 2016 were the predominant, if not sole, reason, for the breach of condition. Further, the applicant has arranged for further studies pending his visa status. He demonstrated to the Tribunal a genuine awareness that that he will need to wholeheartedly apply himself to his studies.

33. Considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Susan Trotter
    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.