Rafiq (Migration)

[2019] AATA 6758

Rafiq (Migration) [2019] AATA 6758 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Qasim Rafiq

CASE NUMBER:  1831872

DIBP REFERENCE(S):  BCC2018/3911418

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 August 2019 at 10:58 am (VIC time)

DATE OF WRITTEN RECORD:                30 September 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal sets aside the decision under review

and substitutes the decision not to cancel the   applicant’s Subclass 573 Higher Education Sector Visa.

Statement made on 30 September 2019 at 1:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – mental health issues – acted in good faith – let down by migration agent – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 October 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1831872.  The applicant’s name is Muhammad Qasim Rafiq.

4. This is an application for review of a decision dated 23 October 2018 made by a delegate of the Minister for Home Affairs who cancelled the applicant’s Subclass 573 Higher Education Sector Visa under section 116(1)(b) of the Migration Act 1958. The delegate cancelled the visa on the basis the applicant was not enrolled in a registered course of study. 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 12 August 2018 to give evidence and present arguments.  The applicant was also represented in relation to the review by his registered migration agent who provided written submissions in advance of the hearing on 12 August 2018.  For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

6. The issue in the present case is whether the applicant who is the holder of a student visa has breached condition 8202 of schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition under section 116(1) of the Act, the visa may be cancelled. The first question for determination is whether or not the applicant complied with condition 8202. In this case, that condition requires that the applicant be enrolled in a registered course of study or in limited cases a full-time course of study or training.

7. In the present case the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course as at 27 February 2018.  An examination of the delegate’s decision record notes that information from the Department indicated that the applicant did not maintain enrolment in a registered course of study from 27 April 2018.  A notice of intention to consider cancellation was issued to the applicant on 1 October 2018 and sent to the applicant’s email address.

8. In the delegate’s file it is noted the applicant did not respond to the notice of intention to consider cancellation.  The applicant gave detailed evidence at hearing as to why he did not personally respond to the notice of intention to consider cancellation.  The applicant gave evidence that he immediately took the notice of intention to consider cancellation to his migration agent at the time, for the purpose of seeking advice.  The applicant also provided his migration agent with medical evidence as to why he was not studying on or around the time he received the notice of intention to consider cancellation.

9. It is apparent from a review of the Tribunal file that the applicant was suffering considerable health issues - mental health issues - at the time that he received the notice of intention to consider cancellation.  He provided evidence to his migration agent who informed him that he would ‘deal with the delegate’ and the notice of intention to consider cancellation, on his behalf.  It is plainly apparent that the migration agent did not response to the notice of intention to consider cancellation, nor send through the medical documents to the delegate for his/her consideration.  The applicant gave evidence that  he then received the notice cancelling the visa on 23 October 2018.

10. Upon receipt of the delegate’s decision record to cancel the visa he immediately again approached his migration agent at the time, who informed him that he would lodge an application with the AAT on his behalf and that he ‘knew a good lawyer’ who would be able to assist him.  The applicant also gave evidence he did not receive any notice of cancellation of enrolment from his relevant course provider, being MIT at the time.  The Tribunal accepts the explanation for the applicant’s non response to the notice of intention to consider cancellation as one where the applicant has clearly acted in good faith and sought advice of a migration agent, and has been let down in that endeavour.

11. In any event, the applicant gave detailed evidence as to his course of study since being in Australia from in or around mid-2016.  The applicant further gave evidence that he disagreed that he was not enrolled in a registered course on 27 February 18.  The applicant gave evidence that his enrolment may have lapsed in or around April 2018 when he sought to reduce his study load due to suffering from various health issues, being mental health issues, as set out at length in the psychological assessment of Edwin Clemens, psychologist, who has provided a detailed report to the Tribunal dated 8 August 2019.  The delegate did not have the benefit of that report at the time of the delegate’s decision.

12. The applicant further gave evidence that on account the medical issues set out in that psychologist report, he sought to reduce his study load in or around April 2018, up to which time he had successfully completed all units which he had undertaken in his Bachelor of Networking an MIT.  Due to the health issues as set out at length in the psychological report, he approached MIT and asked for a reduction in his study load due to struggling with the study load on account of the issues I have already described.  The university refused that application and on account of the health issues as described the applicant simply did not study in that period between April 2018 and late 2018.  The applicant accepts that he was not enrolled at the time of the notice of intention to consider cancelling, notwithstanding that he had made all reasonable efforts to reduce his study load and/or the further study load on account of the health issues that he was clearly suffering.  It is unfortunate that this was not taken into regard by the university considering his exemplary study record to date.

13. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant was  not enrolled in a registered course of study from at least late April 2018 onwards based on his evidence given to the Tribunal, and has therefore not complied with condition 8202 of the grant of his visa.  In finding that the applicant has not complied with that condition, the Tribunal must now 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 discretion.  The Tribunal has had regard to the circumstances of the case, including matters raised by the applicant and the matters in the Department’s procedure advice manual in PAM 3.

14. The purpose of the visa holder’s struggle to stay in Australia has clearly been one to study.  The applicant was granted a student temporary class TU573 Higher Education Sector Visa on 21 April 2016 for the purpose of undertaking an approved higher education level course of study at Latrobe University, being a foundation program leading to a Bachelor of Civil Engineering.  Shortly after completing those foundation studies the applicant gave evidence that he changed course to a Bachelor of Networking at MIT, where he successfully undertook all subjects that he enrolled in.  He sought a deferral of study in late 2017 on account of having to return home to Pakistan to deal with a medical issue in relation to his eye, which the Tribunal has cited a certificate of Javid Ali, the doctor, which corroborates that version of events.

15. On the basis of the evidence before the Tribunal, the Tribunal is satisfied that the applicant has demonstrated that he is in Australia primarily for the purpose of study.  His family remain in Pakistan save for two cousins and a brother who are momentarily in Australia.  He has a family business run by his father back in Pakistan which he proposes to go and assist in upon completion of his studies.  He is not presently working in Australia and has not worked since February 2018.  I find that the applicant has no compelling need to remain in this country, that his original purpose in coming to Australia was for the purpose of studying and I give that some weight towards the visa not being cancelled.

16. As to the extent of compliance with visa conditions, the applicant has not complied with condition 8202, however he has given extensive evidence as to the reasons for the non-compliance, which clearly relate to medical conditions corroborated by the psychological report and on that basis he cannot be held responsible for the breach in those circumstances.  The Tribunal further accepts that the applicant has acted in good faith in response to the notice of intention to consider cancellation by bringing it to the attention of his migration agent in the circumstances.  On the basis of the evidence before me there is no evidence of any further breach of any other visa conditions and on that basis, I find that whilst the applicant did breach the condition for maintaining enrolment, given the circumstances of the breach I give this no weight towards the visa being cancelled.

17. As to the degree of hardship that may be caused if the visa remains cancelled, it would cause the applicant some financial difficulty if he were to go home to return to his country without having completed the degree in which he was enrolled before it was cancelled. 

18. On the basis of that evidence the Tribunal accepts that the cancellation has led to some personal detriment for the applicant and that this detriment would be compounded by the continuation of the cancellation, the Tribunal gives this therefore some weight towards the visa not being cancelled.  The Tribunal has already described the circumstances in which the cancellation arose and is satisfied on the basis of the evidence that the reasons were not sensibly within the applicant’s control, and is satisfied of those matters based upon the medical evidence produced to the tribunal as embodied in the report of psychologist Edwin Clemens, psychologist registration number 0001118441.

19. The Tribunal finds that the circumstances surrounding the cancellation were not reasonably within the control of the applicant and therefore gives this significant weight towards the visa not being cancelled. 

20. There is no indication of any past or present behaviour towards the Department that is not otherwise in good faith and the Tribunal gives his some weight in favour of the visa not being cancelled.  There is no evidence before the Tribunal of any consequential cancellations under section 140 of the Act and therefore on that basis the Tribunal does not take that into account either way in favour or against the applicant in the circumstances.

21. As to whether there are any legal matters or consequences arising from cancellation, if the visa were to be cancelled the applicant would be excluded from making application for certain types of visas and most importantly would not be able to complete his qualification before returning home.  Given the circumstances I have already described that led to the cancellation of the visa, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled.  I also take into account the written submissions of the migration agent on the issue and am persuaded by those submissions, and on that basis I find it would be manifestly unfair for the visa to remain cancelled in those circumstances and I give that some weight in favour of the visa not being cancelled.

22. There is no evidence before the Tribunal of any international obligations including non-refoulement and best interests of children as a primary consideration, so I do not take those matters into account in this decision.  There are no other relevant matters before the Tribunal that are relevant in taking this decision into account.  As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by matters not reasonably within his control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa not being cancelled and I so find. 

    DECISION

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.  The Tribunal sets aside the decision under review and substitutes the decision not to cancel the applicant’s Subclass 573 Higher Education Sector Visa. 

    Vanessa Plain
    Member