Raffiudheen (Migration)

[2020] AATA 2588

Raffiudheen (Migration) [2020] AATA 2588 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Hafeez Raffiudheen

CASE NUMBER:  1813572

HOME AFFAIRS REFERENCE(S):          BCC2018/821747

MEMBER:Donna Petrovich

DATE:25 May 2020

PLACE OF DECISION:  Melbourne

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 25 May 2020 at 4:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – psychological issues – issues with wife’s pregnancy – wife studying in Australia – applicant’s caregiver role to child – decision under review set aside

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 9 May 2018 made by a delegate of the Minister for Home Affairs 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 remained unenrolled from 9 August 2017 until 6 April 2018, a period of eight months. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 3 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

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

   Background

9. The applicant was granted a visa on 23 June 2016, after initially arriving in Australia on 15 October 2012 and commencing a Bachelor of IT, he was granted a Student Visa.  The applicant has completed a Certificate iii in Commercial Cooking and provided the Tribunal with a copy of the Completion letter dated 9 April 2015, and a Statement of Attainment on 9 April 2015. 

10. 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

11. 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’.

    The Purpose of the visa holder’s travel and stay in Australia and whether holder has compelling reason to travel or remain in Australia.

12. The applicant travelled to Australia and obtained a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) Visa with the purpose of study.  The applicant told the Tribunal that he was having difficulty with his course and was advised by his psychologist to only take two subjects per semester. Acknowledge Education Pty Ltd cancelled his enrolment on 9 August 2017 as he had not studied for eight months.  The applicant enrolled in a Bachelor of Business which was issued after the Notice of Intention to Consider Cancellation was issued on 11 April 2018. The applicant has married by arranged marriage, and his wife and infant son, who was born here now reside in Australia with him.  His wife has sought and obtained her own Temporary Student Visa and is studying in Australia.  The Tribunal has concerns that the applicant now has no visa in association with his wife and child and it is reasonable to argue that there is a compelling need that he stays with his wife and child in Australia as part of the family unit.  The Tribunal in considering this, places some weight in favour of exercising discretion not to cancel.

    Did the applicant comply with Visa Conditions

13. The applicant has not been enrolled in a registered course since 9 August 2017. While the applicant has obtained a conditional offer of enrolment, which was issued after the Notice of Intention to Consider Cancellation was issued on 11 April 2018, he has not accepted the offer and has not been issued with a COE.

14. Therefore, the applicant has remained in Australia without having complied with the conditions of his visa.  As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight in considering this factor.  

    Degree of Hardship that may be caused

15. The applicant did not raise any specific matters of hardship at the hearing, he told the tribunal that at the time of the hearing his wife had approximately two years of study to complete her degree and that if his visa was restored he would complete his studies and that they would return to India together. 

16. He also told the Tribunal that he and his wife had received a job offer in the United Emirates in Dubai of full-time employment, which she did not accept as she had not completed her studies.

17. The couple have a young son together and the Tribunal has considered the hardship that separation from his father, and the lack of support and comfort that the family would endure if the applicant’s visa were to be cancelled. In consideration of this, the Tribunal places weight in favour of giving consideration of discretion not to cancel.

    Circumstances in which the grounds for cancellation arose

18. The applicant told the Tribunal during the hearing that he had been struggling with his studies and had suffered some depression.  His psychologist had advised him to reduce his study to two subjects per semester to assist in reducing his stress.

19. He also told the Tribunal that he returned to India and was introduced to his intended bride, and he stayed for a period of one month before returning to Australia. The applicant went to India and stayed for 15 days for the wedding, and then returned to Australia.  When he went to India to bring his wife back to Australia, he remained in India for only one week.

20. His wife was pregnant when she arrived in Australia, and the applicant told the Tribunal that the pregnancy was unplanned, and this also caused him stress.  His wife had issues with the pregnancy three to four months after arriving in Australia and was losing amniotic fluid which caused them to be concerned for their baby.

21. His wife had enrolled in a Bachelor of Business when she was pregnant, she sought a deferral, she did not receive a full deferral and would have lost six months of study if she had not continued.  She took time away between December and February as a result of the difficulties with the pregnancy.  When the baby was three months old, she returned to her studies. The applicant looked after the baby because he was not studying.

22. When the applicant’s Visa was cancelled his wife applied for and was granted a Student Visa, to enable her to continue her studies.

23. During the hearing the applicant told the Tribunal that in relation to his wife, “She is very smart, not like me”.

24. The Tribunal, in considering the circumstances in which the grounds for cancellation arose, has formed the view that the applicant was suffering from stress prior to his wedding and having difficulties studying; when his wife arrived with an unplanned and difficult pregnancy, the applicant was placed under further pressure. The applicant told the Tribunal during his submission at the hearing, that he did not confide in anyone, or seek assistance from his place of study, nor did he make contact with the Department about his situation. This was confirmed in reports provided to the Tribunal relating to his mental health.

25. The applicant provided the Tribunal with evidence from his Psychologist Ms Wendy Brodribb registered Psychologist who treated him initially in July 2013, and assessed him as presenting with symptoms of Post -Traumatic Stress Disorder an Adjustment disorder.  The report recommended a deferment of his studies until November 2013 and for the applicant to attend further counselling sessions.  It is not understood by the Tribunal if the applicant continued to seek treatment as recommended.

26. There was a further report provided by the applicant to the Tribunal from Better Still Psychological and assessment services to Mr Daryl Roach, education Co-Ordinator Stott’s College, who first saw the applicant in November 2016, he was diagnosed with Adjustment Disorder with Depressed Mood, which became more severe in September 2017 when the applicant’s wife was pregnant and was suffering from a medical condition.  He further reviewed the applicant in April 2018 and made an assessment that the applicant required additional counselling but was unable to afford it, and suggested that the applicant undertake no more than two subjects per semester and receive ongoing counselling which could run parallel with his studies.

27. The Tribunal, in consideration of all of the evidence in relation to the applicant’s circumstances, finds that the applicant did find himself in a position of stress, and was ill-prepared for the pressures of study, a new wife, and the worry of his wife’s pregnancy and the worry of the health of his baby.  The Tribunal places some weight in favour of the applicant in this regard, as these circumstances are beyond the applicant’s control.

    Past and present behaviour of the applicant

28. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

29. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Persons in Australia whose visa would be cancelled under s.140

30. In this case the applicant’s wife and child would not be affected if the applicant’s visa was cancelled, as the applicant’s wife has obtained independent of her husband her own Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa and would not be cancelled under s.140. The Tribunal in considering this circumstance as a whole, and the nature of the parental relationship that the applicant has as caregiver of the child in this case places some weight in the applicant’s favour

    Other relevant factors

31. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.   

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

    DECISION

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

    Donna Petrovich
    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.