Rahat (Migration)

[2019] AATA 6859

Rahat (Migration) [2019] AATA 6859 (5 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jobayer Ahmed Rahat

CASE NUMBER:  1720665

DIBP REFERENCE(S):  BCC2017/2015518

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 September 2019 at 2:08 pm (VIC time)

DATE OF WRITTEN RECORD:                21 October 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 21 October 2019 at 11:24am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – applicant involved in a car crash – limited academic progress – family health issues – applicant remained employed – decision under review affirmed      

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 30 August 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 5 September 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 application of Jobayer Ahmed Rahat in case number 1720665 in the matter before the Administrative Appeals Tribunal. The applicant is a citizen of Bangladesh. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection now known as the Minister for Home Affairs on 30 August 2017 cancelling his subclass 573 student visa pursuant to section 116(1)(b) of the Migration Act 1958.

4. The applicant’s student visa was granted on 24 April 2014 with an original expiry date of 30 August 2018 providing for more than four years and four months during which the applicant would be permitted to reside in Australia for the purposes of fulltime study. Specifically the applicant had been granted a visa for that length of time to enrol and successfully complete firstly a Diploma of Engineering course that would lead into a Bachelor of Engineering course.

5. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

6. The tribunal convened a hearing to consider the merits of the applicant’s case on 5 September 2019. The applicant appeared at the hearing to give evidence and present arguments by video-link. The tribunal was constituted by a Member in the Melbourne registry and the video was set up in the Sydney registry of the tribunal’s premises where the applicant currently resides.

7. The applicant’s visa was subject to a number of conditions as prescribed by schedule 8 of the Migration Regulations 1994 as they then were when the visa was granted. In the present case the issue is whether the applicant has breached condition 8202 of the Regulations. If the applicant has breached that condition the visa may then be cancelled pursuant to section 116(1) of the Act.

8. The first question is whether the applicant breached condition 8202. Condition 8202(2)(a) of the applicant’s visa required that he remain enrolled in a fulltime registered course of study. In the delegate’s decision record, a copy of which was provided by the applicant with his review application, the delegate identified the period from 27 October 2016 to 30 August 2017 as the relevant period in which the applicant was not enrolled in a registered course of study. This amounted to more than 10 months during which the applicant was alleged to be in continuous breach of his visa.

9. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System. This is known more commonly as the PRISMS database. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000. It provides a means for education providers in Australia to comply with legislative requirements relating to international

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students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once the visa has been issued.

1. In particular and of relevance to the present case it may be used by course providers to report that they have cancelled a particular student’s confirmation of enrolment known as a COE in a course for which they had previously been enrolled and also the reasons for doing so.

2. The PRISMS report obtained by the delegate indicated that the applicant had not been in a registered course of study since 27 October 2016 due to the course provider cancelling his enrolment in a Bachelor of Engineering course.

3. The Department of Immigration and Border Protection as it then was called wrote to the applicant on 2 August 2017 notifying him of its intention to consider cancelling his student visa. That notice set out particulars of the alleged breach by the applicant of condition 8202. That notice also invited the applicant to comment on these allegations before the Department moved to cancel his visa.

4. The applicant responded to that notice in writing on 25 August 2017. The applicant did not dispute that he had been in breach of condition 8202. And at the hearing before the tribunal today on 5 September 2019 the applicant admitted that he was not enrolled in a registered course of study for the period that had been alleged by the delegate.

5. Based on that material and the evidence given by the applicant at the hearing today the tribunal is satisfied that the delegate was correct in finding that the applicant had breached condition 8202(2)(a) of his student visa for the period of the time that was alleged.

6. Now I come to consider the discretion of whether or not it is appropriate to cancel his visa. 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 the Regulations that must be considered in the exercise of this discretion. However, the tribunal is mindful that it should consider circumstances of the case, including any matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Departments Procedures Advice Manual known as PAM3 and headed “General visa cancellation powers”.

7. The matters that ought to be considered are specifically listed in PAM3 as follows. First, 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.

8. In his response to the Department’s original notice notifying him of its intention to consider cancelling his visa the applicant explained in writing the circumstances which he says gave rise to the 10 month period in which he was not enrolled. In the course of the hearing the applicant also elaborated upon these circumstances. I should indicate that the tribunal found the applicant’s evidence generally to be quite truthful. The evidence he gave at the hearing was by and large consistent with what he had stated in his written statement to the department approximately two years ago.

9. The applicant stated that in about May 2016 he had a car crash and narrowly escaped death. He suffered no physical injury. This was in May 2016, effectively that was in his first semester of studies for the Bachelor of Engineering degree. As the delegate noted and the

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tribunal noted, this is an accident which predated months before the the breach period started to accrue. So May 2016 is when the accident occurred, he does not start to accrue dates in breach of his visa until October.

1. The tribunal accepts that the car accident occurred and that it would have had an impact on him. However, he has not produced any evidence beyond his own assertions as to the significant mental impact it did have on him. In any event the tribunal is of the view that this does not constitute a reason for him to begin breaching his visa about six months later and continuing to do so.

2. The applicant also referred to the fact that his mother who had ongoing health issues, they seem to be mental health issues, became sick while he was in Australia and she was in Bangladesh. He had to return to Bangladesh where he stayed for five weeks leading up to the commencement of the second semester of 2016.

3. He came back. He had enrolled while he was in Bangladesh for the second semester of the Bachelor course. The applicant stated that the payment of fees were certainly not an issue. In relation to that the tribunal accepts that he had the financial capacity to pay for the fees. The tribunal also notes that he had submitted in evidence before the tribunal his academic record relating to both his Diploma course, which took 1.5 years, and the first semester of his studies in the Bachelor of Engineering course. So in that sense he was certainly forthright in producing that evidence, which would display to the tribunal to what extent he had complied with his visa up until this non-compliance period. The tribunal notes that he successfully completed the Diploma, he passed everything, which made him eligible to enter the Bachelor course.

4. His first semester of studies however took a turn for the worse and as is evident from the academic transcript from Western Sydney University and all four units in that first semester he failed those units, quite clearly failed. His highest mark was 30, his lowest mark was eight.

5. Turning back to his return to Australia the applicant stated in evidence, and the tribunal accepts, that he arrived about one to two weeks after the second semester of 2016 had started. The applicant referred to some discussion taking place between himself and his subject coordinator as well as student services staff at the university relating to the possibility of him reducing his course load. The applicant in his response to the department’s notice referred to there being some kind of miscommunication as to what he could or could not do. But ultimately it appears on his evidence before the tribunal there was some disagreement between himself and the student services or administration of the university as to whether he could reduce his workload. They did not accept his formal application for a reduction in his course load. They said he had to remain enrolled in at least three or possibly four subjects.

6. As a result of that it became clear to the applicant that they would not allow him to continue in the way that he wanted and so he did not pay for enrolment in those units and made the conscious decision to cease his enrolment at Western Sydney University.

7. The applicant stated in evidence that he did not appeal the decision of the university to disallow him from reducing his course load. It seems he made the decision to leave his relationship with Western Sydney University and find some alternative course in which he could enrol.

8. The applicant was very aware of this it would seem from his own evidence when the breach period started to accrue. He was also very conscious that by remaining unenrolled in a course of study and now being aware that Western Sydney University had cancelled his

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enrolment he would be in breach of condition 8202 and that he would need to take steps to enrol in another course of study to remain compliant with his visa obligations.

1. The applicant made some reference to suffering mental depression during this time. The applicant made some reference to not being aware that he needed to get an agent to enrol in another course. Ultimately the tribunal is not satisfied with any of the explanations that the applicant has proffered as to why he continuously remained unenrolled in a registered course of study for 10 months. It is a significant period of time.

2. It may be that in this situation where a dispute has arisen or some circumstances such as the present where a student, an international student, terminates their relationship with the current course provider there is a period of time where they need to gather their thoughts and organise themselves to get back on track and not remain in continuous breach of a visa. In those circumstances it is very unusual, very rare for the Department to take steps to cancel an international student’s visa if they are just not enrolled for a period of one or two months even.

3. But the applicant did not take positive steps, as it was his responsibility to do so, to actually get enrolled in another course of study. He remained unenrolled continuously until his matter, his visa, his situation came to the attention of the Department and by the time they came to cancel his visa he had ceased to be enrolled for a period of 10 months.

4. The tribunal notes that the applicant admitted in evidence that even though he made the conscious decision to remain unenrolled in a course of study and not prioritise his studying while he was here as a student visa holder he chose to work as he is entitled to do while his visa remains current. He was working on his own evidence by his own admission for about 20 hours a week for the entire duration of the visa breach period. That is 20 hours a week the applicant said he held that job as a McDonald’s employee for about two years up to the date of his visa cancellation.

5. The tribunal finds it somewhat bizarre that he would claim that he was suffering from mental health issues such that he could not study yet those mental health issues did not affect his capacity to get up and go to work each day. The tribunal is of the view that there were no extenuating circumstances beyond the control of the applicant that resulted in this breach of his visa for a period of 10 months.

6. I now turn to the purpose of the applicant’s stay in Australia. The purpose of the applicant’s stay in Australia as reflected in the essential purpose of a student visa is to study on a fulltime basis. That purpose was effectively defeated when the applicant chose to cease studying without any satisfactory explanation. This is a significant factor weighing in favour of a decision to cancel his visa.

7. The tribunal has considered the submissions and the evidence of the applicant saying that he would like to remain in Australia so that he can continue to study and obtain a further educational qualification in Australia. By their nature student visas are meant to provide non-Australian citizens with temporary residence only for a specified proposed course of study. If the applicant’s visa had been left to operate without being cancelled it would have now expired. The applicant was afforded a significant amount of time to spend in Australia for the purposes of fulltime study. He used part of that visa period successfully, that is the first one and a half years and for another semester, if you count the continued enrolment in the first semester of the Bachelor course. The opportunity has now come to an end. There is no compelling need in the tribunal’s view to allow him to remain in Australia.

8. I now turn to the extent of the applicant’s compliance with the visa conditions. I have already alluded to the fact that apart from the breach the applicant did remain largely compliant with

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his visa conditions. He submitted in evidence his successful completion of his Diploma course and he did submit his academic transcript, which demonstrated that he remained enrolled although he failed all of those units, for the first semester of the Bachelor course.

1. The applicant’s breach of his visa however for a continuous period of approximately 10 months without satisfactory explanation represents a significant proportion of the total visa grant period. Because the applicant has not provided a satisfactory explanation for this breach this is also a significant factor that weighs in favour of cancelling his visa. There is no other material before the tribunal which suggests he has not complied with other visa conditions of this visa or of any previous visas.

2. I now turn to the issue of hardship that the applicant may face if his visa is cancelled. If the visa is cancelled the applicant has stated in evidence that he will be devastated. The tribunal accepts that he will be devastated because he had a dream in his own words to complete his studies and it appears his ultimate ambition was to leave Australia with a Bachelor’s course degree from a reputable university.

3. The tribunal accepts that it will be difficult for him if he is forced to return to Bangladesh without having achieved that qualification. However, that desire and that hardship must be tempered with and measured against the degree of the breach and the circumstances giving rise to it. As already stated above, the tribunal is of the view that he has not provided any satisfactory explanation for his breach of that continuous 10 month period. The tribunal cannot understand and fathom why he chose to deliberately deprioritise his studies and instead use that 10 month period to simply work on a continuing basis.

4. If his visa is not cancelled the tribunal has also taken into account that he has proposed to enrol in another course of study. This is a Diploma course at Strathfield College, it is an IT course. So in that sense the tribunal accepts that he still does have a genuine desire it would seem to remain in Australia to study more.

5. The tribunal has given consideration to the applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the tribunal in that regard.

6. There do not appear to be any consequential cancellations under section 140 of the Act that will follow if the applicant’s visa is cancelled. The tribunal notes that if his visa is cancelled the applicant will become an unlawful non citizen and liable to detention under section 118 and removal under section under 198 of the Act if he does not voluntarily depart Australia. A bar under section 48 of the Act will be imposed limiting his options to apply for further visas from within Australia.

7. 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. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of the visa condition.

8. The tribunal notes that the applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Bangladesh and holds a current passport for that country so he can return there. While detention and forcible removal from a country are significantly coercive powers they will only eventuate if the applicant does not cooperate with authorities in giving effect to his departure from Australia.

9. The tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case. In all of the circumstances of this case the tribunal is

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satisfied that the applicant’s visa ought to be cancelled. The tribunal notes particularly with reference with reference to the circumstances giving rise to the breach of the visa condition the applicant has provided no satisfactory explanation which justified that 10 month continuous breach.

1. In case number 1720665 in the matter of Jobayer Ahmed Rahat the tribunal affirms the decision to cancel the applicant’s student temporary class TU subclass 573 visa.

   DECISION

2. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

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