Rahman (Migration)

[2024] AATA 3407

Rahman (Migration) [2024] AATA 3407 (16 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haseeb Rahman

REPRESENTATIVE:  Mr Stephen John

CASE NUMBER:  2304382

HOME AFFAIRS REFERENCE(S):          BCC2022/4120967

MEMBER:Penelope Hunter

DATE:16 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 July 2024 at 1:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – returned to home country when COVID pandemic began – difficulties with online study and change of course – physical and mental health – family’s business affected by pandemic – not subject to visa conditions while in home country – incorrect advice from student counsellor – new enrolment made after receiving department’s notice of intention – return to study and course progress – family’s expectations and expenditure on applicant’s education – consequences of cancellation, degree of hardship and cooperation with department – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. 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 15 July 2024 via MS Teams video to give evidence and present arguments. The applicant was represented in relation to the review and his representative also attended the hearing.

4. 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

5. The applicant is a 25 year old male citizen on Pakistan. He was granted a student visa on 5 February 2018 which was subject to conditions, including condition 8202.

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 (Cth) (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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

9. On 20 January 2023, a delegate of the Minister sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa. It was identified that his Provider Registration and International Student Management System (PRISMS) records indicated that he had not been enrolled in a course since 7 December 2021. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to provide comment as to why the grounds for cancellation may not exist.

10. On 6 February 2023, the representative for the applicant provided a response together with several documents including a Confirmation of Enrolment for the Applicant in a Bachelor of Information Technology created on 23 January 2023, a psychological counselling report from Stephen Sutton, a letter from the University of Sydney dated 28 June 2019, internal records from Macquarie University issued 26 October 2020, letter from Dr Osama Waheed dated 23 January 2023, a family registration certificate, bank statements from 1 November 2020 to 2 February 2023, and a statutory declaration of the applicant. The applicant’s statutory declaration contained the following information:

    i.The applicant set out his study history and difficulties he faced when the COVID-19 pandemic began. He returned to Pakistan at the commencement of the pandemic and faced obstacles with online study.

    ii.He was studying a Diploma of Engineering and decided to change to a Diploma of Commerce. He completed one term online but by the time he had returned to Australia he had missed two terms.

    iii.He developed anxiety and depression and was prescribed medication. His father also had  a severe bout of COVID which impacted upon him negatively. He also had an emotional setback as his partner cheated on him.

    iv.His family had a transport business in the tourist industry and was economically affected by the pandemic.

    v.On return to Australia he visited the university consular who advised him he was not able to extend his visa. This worsened his mental health.

    vi.He has made changes to his accommodation, his family’s business has recovered and he is now pursing a Bachelor of Information Technology. He is positively on track and his current course would offer excellent prospects in Pakistan.

11. The delegate considered the submissions and evidence provided by the applicant however it was noted that the applicant had only obtained a new CoE after being contacted by the Department with a NOICC on 20 January 2023. While the delegate acknowledged that the applicant had faced a number of negative circumstances they placed greater weight on the length of his period of non-enrolment. It was also acknowledged that the applicant may have received incorrect advice from a student counsellor/university consular yet it was considered that the applicant could have contacted the Department or another education provider to explore other options. The delegate ultimately determined to exercise the discretion to cancel the visa.

12. The Tribunal received an application for review from the applicant on 27 March 2023, accompanied by a copy of the decision record of the delegate.

13. On 9 July 2023, the applicant submitted to the Tribunal screenshots of text messages between himself and Stephen Sutton regarding counselling between March 2023 and August 2023.

14. At the hearing, the Tribunal asked the applicant he was aware that his visa was subject to condition 8202 and he confirmed that he was.

15. The applicant was also asked whether he disputed that he was not enrolled in a full-time registered course of study between 7 December 2021 and 31 January 2023 and he confirmed that he did not.

16. On the material before it, the Tribunal is satisfied that the applicant was not enrolled in a full-time registered course between 7 December 2021 and 31 January 2023.

17. However, the applicant was not onshore between 19 March 2020 and 17 March 2022. While the visa remained current, he was not in Australia subject to its conditions.

18. Once the applicant returned to Australia on 17 March 2022, he again became subject to its conditions.

19. The Tribunal is satisfied that between 17 March 2022 and 31 January 2023, the applicant has not complied with condition 8202(2)(a).

20. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.

    Consideration of the discretion to cancel the visa

21. 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, whether the visa holder has a compelling need to travel to or remain in Australia

22. The purpose of the applicant’s travel and stay in Australia was to undertake study. The applicant was granted his visa in February 2018 to undertake a foundation course at Sydney University and then progress to bachelor level studies. It was his first student visa and he was 19 years old when he arrived in Australia. On the material before the Tribunal he completed his initial studies before transferring to Macquarie University to undertake his Diploma of Engineering. He failed a couple of subjects in his first semester of study in 2019, however his transcript records that he re-enrolled in these subjects in 2020 and successfully completed all units of his course. He undertook these studies remotely having returned to Pakistan in March 2020. That he chose to depart at this time indicates that he was genuinely in Australia for the purposes of study. It is also not the case that the applicant arrived in Australia while the holder of a student visa and did not undertake study.

23. The applicant spoke to the Tribunal about the difficulties he was experiencing with online study from Pakistan, particularly the time different which meant that he was having to be awake at 2 am in Pakistan to attend online classes from Australia and further that he was disconnected from his teachers and peers while trying to understand difficult mathematical and engineering concepts. He then transferred to the Diploma of Commerce with the intention of progressing to the Bachelor of Commerce through Macquarie University. He believed that this may be more manageable course online but his difficulties with this manner of study remained and the applicant also faced difficulties at home both emotional and financial. The fact that the applicant attempted for some time to continue his studies offshore demonstrates to the Tribunal the value that he and his family perceive of an Australian education to the applicant’s future.

24. The Tribunal accepts that the applicant has undertaken foundation courses in Australia to prepare him for his desired bachelor level qualification in Australia. He is not currently working, and claimed that he has only worked intermittently as a food delivery driver. He told the Tribunal he is not remaining in Australia for any employment prospects, he has close ties with his family and wishes to fulfil their expectation that he obtains international qualifications. They have spent a significant sum assisting him to achieve this.

25. The applicant confirmed that he intends to undertake a Bachelor of Information Technology. He has made enquiries through an agent about commencement of the course through Kent Institute Australia in the September 2024 intake and told the Tribunal that he was eager to return to his studies. The cost of the course is in excess of $60,000 and it is not an investment that is lightly made. The Tribunal accepts the evidence of the applicant that there is value for the applicant’s future in his home country as the holder of international qualifications. It is accepted that it is still the purpose of the applicants stay in Australia to study and complete a bachelor level qualification.

26. The applicant also told the Tribunal that if he was not able to return to study in Australia he did not think that study in Pakistan would be an alternative. He said that all of his peers had already completed their tertiary qualifications. He said would be commencing study in his country at 25, he would be older than most others and did not think he could commit to study in that environment. It would be detrimental to his resolve to pursue tertiary qualifications.

27. The Tribunal gives this discretionary factor significant weight in favour of the applicant.

    The extent of compliance with visa conditions

28. The applicant was in breach of condition 8202(2)(a) and not enrolled while onshore and the holder of a student visa between 17 March 2022 and 23 January 2023. This was a breach of his visa condition and this period of 10 months is significant.

29. There is no information that the applicant did not comply with any other conditions of his visa.

30. The Tribunal gives this factor some weight in favour of cancellation.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. The applicant maintains that his family to date have invested around $200,000 in his attempts to obtain Australian qualifications. This includes the costs of his previous studies to date and also the funds that they have regularly provided him for his daily living and accommodation while in Australia. If he was unable to complete desired qualifications he believes that his family’s investment would be wasted.

32. The applicant said he had previously suffered from depression and anxiety requiring medical intervention in the past due to his difficulties with study and other events occurring in his life. He claimed to have worked hard to improve his mental and physical state and he was currently eager to return to study. He believes that he will have a bright future if he successfully obtains his desired tertiary qualifications. The applicant expressed his concern that he was uncertain how mentally he would cope if he could not return to study in Australia.

33. Additionally, the applicant told the Tribunal that he wished to meet his family expectations. His father was an engineer and this was what first motivated his choice of study in engineering. He said that he is now more mature and realises his interest in more in software and programming and he was certain that he could build a successful career for himself in IT. He was the eldest son, his sister is studying medicine, his family valued considerably high level qualifications. He believed that the emotional consequences of disappointing his family would have significant ramifications for his mental health.

34. The Tribunal accepts that the applicant’s family have invested a significant sum in his education and that he feels the burden of their financial commitment and expectations. It accepts given the evidence of the applicant’s past difficulties with mental health that if the visa remained cancelled it would also cause the applicant emotionally and psychological hardship.

35. The Tribunal gives this factor some weight in favour of the applicant.

    The circumstances in which ground of cancellation arose.

36. On the evidence the applicant ceased studying while he was offshore. He chose to depart Australia at the beginning of the pandemic to be with his family. He continued to study for most of 2020 remotely from Pakistan. At this time he experienced difficulties adjusting to online learning for several reasons. Firstly, relating to the manner of study itself because of the method of delivery of the course content, his disconnection with his peers and teachers and the time difference as his lectures were delivered in the early hours of the morning. Secondly, his family experienced financial difficulties due to shutdowns in the tourism transportation business and his father became ill with COVID-19. This led to difficulties with ongoing payment of fees. In addition to these disruptions, the applicant broke up with his partner while in Pakistan, having been in the relationship since 2015. It is accepted that many of these events which led to the applicant ceasing his studies were outside his control.

37. As for the duration of his non-enrolment, the Tribunal accepts the evidence of the applicant that he intended to recommence his studies. The Tribunal accepts, as did the delegate, that the applicant sought advice from a student counsellor about extending his enrolment and his visa but was incorrectly advised that it would not be possible for him to extent his visa to allow for the completion of his course. It is accepted that the applicant believed the authority of his university counsellor to advise him of his study options. The claims of the applicant that he sank into a further depression are corroborated by the letters of support provided by Dr Osama Waheed who reports that the applicant first contacted him on 22 April 2022, for treatment for a major episode of depression and anxiety. The applicant was prescribed medication and underwent cognitive behavioural therapy with an Urdu speaking transcultural mental health worker. The applicant told the Tribunal that he felt that his life was out of control in this period. He claimed that he felt suicidal and the Tribunal notes Dr Waheed’s caution that the utmost care should be given in prescribing the applicant benzodiazepines as he was concerned that the applicant might use this for self-poisoning. Psychologist, Stephen Sutton, confirms in his letter that for most of 2022, the applicant was experiencing serious symptoms of stress, anxiety and depression. There is no evidence that the applicant was otherwise functioning at this time. He was not working and completely reliant on his family for support. Even though the applicant was attempting to seek some treatment at this time, it is accepted that due his mental health he was not in a position to return to study and his ongoing lack of enrolment was to a certain extent outside his control.

38. The Tribunal has had regard to the fact that the applicant only returned to study when contacted by the Department. The applicant told the Tribunal that at this time his symptoms were starting to relieve and he had the intention of seeking further advice from an education agent. However, the Department contacted him before he could act on those intentions. He claimed that he really wasn’t sure what his options were at the time and was somewhat mentally stuck. Now he has worked through his issues with counselling, he claims to be more mature and understand better his study options, the applicant implored the Tribunal for the opportunity to complete his studies. The Tribunal accepts that the applicant always had the intention to resume his studies.

39. The Tribunal gives this factor significant weight in favour of the applicant.

    Past and present behaviour of the applicant towards the Department

40. There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140

41. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. There is no weight attributed to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

42. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

1. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

2. The applicant told the Tribunal that he had travelled overseas several times with his family. He had concern about the impact of any visa cancellation on future visa application to other countries, and his potential in the future to secure international employment. The Tribunal accepts that in the event the applicant’s visa remains cancelled this occurrence may be required to be disclosed in any future visa applications.

3. The Tribunal gives this consideration some weight in favour of the applicant.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

4. The applicant is a citizen of Pakistan and there is no information that his visa cancellation would impact on Australia’s international obligations. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations. The applicant told the Tribunal that he had no fear of returning to Pakistan and intended to do so upon the completion of his Bachelor of Information Technology. The applicant has no children whose interests the Tribunal is to consider.

5. There is no weight attributed to this factor.

6. There are no other relevant matters for consideration by the Tribunal.

   Conclusion

7. The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matter it is satisfied that as a whole there are aspects that are significantly favourable to the applicant as discussed above. Particularly considering the reasons the grounds for cancellation arose, the purpose of the visa and the applicant’s stay in Australia, the consequences of cancellation, the degree of hardship and his cooperation with the Department.

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

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Penelope Hunter
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.