Rehan (Migration)

[2019] AATA 2850

Rehan (Migration) [2019] AATA 2850 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chaudhry Abdullah Rehan

CASE NUMBER:  1900218

HOME AFFAIRS REFERENCE(S):           BCC2018/4205063

MEMBER:Damian Creedon

DATE:24 June 2019

PLACE OF DECISION:  Perth

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 24 June 2019 at 2:43pm

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 – circumstances giving rise to non-compliance – medical treatment – enrolment deferred – non-payment of fees – ‘miscommunication’ with course provider – beyond applicant’s control – acted reasonably and promptly – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 January 2019 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 ceased to be enrolled in a registered course on 28 January 2018. 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 21 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

1. 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?

1. 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).

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

3. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, sets out the following material information:

   Assessment

   I have carefully considered the email resposne [sic] provided by [the Applicant]. He did not provide any documentary evidence to suggest he contacted his education provider about his medical condition or provided any documentary evidence in support of his medical condition from a hospital or a medical practioner [sic] about the breach occured [sic] since 25 January 2018.

   [The applicant’s] visa was granted subject to condition 8202. As he has not been enrolled in a registered course since 25 January 2018 and according to evidence available to me in the Provider Registration and International Student Management System (PRISMS) indicates that his enrolment in the Diploma of Science (Computing/IT) course with Edith Cowan College was cancelled for “Non payment of fees” on 22 January2018 and last day of study 22 January 2018, he no longer meets the requirement of subclause 8202(2)(a).  Therefore, he has not complied with a condition of his visa.

   Determination

   I am satisfied there is a ground for cancellation under section 116(1)(b) of the Act.

   (Emphasis in original)

4. The applicant admitted in sworn evidence to the Tribunal that he was not enrolled in a registered course as alleged in the delegate’s decision record.

5. 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

1. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

Background

1. The applicant is a 24-year-old Pakistani national who first arrived in Australia on or around 2 October 2015 as the holder of a Student (subclass 573) visa.

2. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival in Australia he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
·     Tertiary Access Program	08/10/2015	22/01/2016
·     Diploma of Science (Computing/IT)	22/02/2016	27/01/2017

1. PRISMS also records that the applicant is presently enrolled in a Bachelor of Business that he is due to commence on 22 July 2019 and is scheduled to complete on 30 June 2022.

Circumstances in which the ground of cancellation arose.

1. Central to circumstances in which the ground of cancellation arose is what the applicant describes as a “disability” that he suffers from as a result of a childhood accident.  In his evidence to the Department he describes his disability in the following terms:

   [I]Went through a tregedy [sic] back at home, when I was young , it was a 11000 KW electric shock which resulted in burnt right arm and right side of the chest , and faced numerous surgeries.  The condition of my right hand and nature of [the] disability I am suffering from was explained [in a ] short written interview [with my course provider] before applying for the studies in abroad [sic] and getting an offer letter.  [Later] after arriving in Australia and starting my studies, I was assisted with the Equity and Disabilty [sic] policy as per my needs while studying.  [Meanwhile my] hand was gradually treated during Semester breaks in Pakistan.

2. The applicant’s evidence to the Tribunal is that he has had in excess of 40 medical procedures on his arm and hand since the accident, including major surgeries, and his treatment needs are ongoing.  Notwithstanding the accident, he states that he has sought to pursue as normal a life as possible, particularly in respect of his academic pursuits as a student both in his native Pakistan and since arriving in Australia on a student visa.

3. The applicant’s evidence is that he was able to successfully complete his studies in Australia between October 2015 and January 2017 but that he had to defer his course in March 2017 on account of the ongoing medical treatment of his arm and hand in Pakistan.  The applicant’s movement records confirm that he departed Australia on 9 March 2017 and returned on 15 May 2017.

4. The applicant’s evidence is that after his return to Australia in May 2017 the condition of his arm and hand deteriorated over time, as did his general health, culminating in his presentation to the Emergency Department of Fiona Stanley Hospital on 29 August 2017 with severe pain in his injured arm.  The applicant provided the Tribunal with a copy of his discharge record from Fiona Stanley Hospital signed by the Emergency Registrar then on duty.  For the applicant’s privacy it is inappropriate to set out the medical diagnosis in detail, suffice to note that the record shows that the applicant was under the care of the Emergency Department for approximately 10 hours and that the Hospital’s observations and diagnosis confirm the applicant’s description of his injury and ongoing treatment requirements.  There is a one piece of relevant information in the record which is repeated twice: firstly, under the “E D Management” heading; and secondly, under the heading “Discharge Plan”.  In both cases the relevant information is to the effect that the “Patient [i.e. the applicant] has elected to return to Pakistan for medical f/u [i.e. follow up]”.

5. The applicant’s evidence is that shortly after his discharge from Fiona Stanley Hospital he contacted his parents, who were at that time travelling in Saudi Arabia, and it was agreed that he should immediately fly to meet them there before they returned to Pakistan together.  The applicant’s movement records show that he departed Australia on 2 September 2017.

6. The applicant stated to the Tribunal that he met his parents in Saudi Arabia as planned and they returned together to Pakistan.  He stated that he then consulted his long-term surgeon who provided the necessary treatment and recovery programme for him.  The applicant provided the Tribunal with copies of letters from his surgeon and his physiotherapist confirming his treatment and recovery plan.  Again, it is unnecessary to set out the diagnosis in detail, suffice to note that the surgeon’s opinion corroborates the applicant’s description of his deteriorating condition to September 2017.

7. The applicant’s movement records show that he returned to Australia on 25 September 2019.  Despite the treatment he had received, however, the applicant’s evidence is that his condition deteriorated again, through to early January 2018.  The applicant provided two letters from his Australian GP dated 22 December 2017 and 10 January 2018 respectively.  The 10 January letter contains the following material information:

   He [i.e. the applicant] is unable to study because of the constant pain in his arm.  In my opinion, he needs an urgent Orthopaedic assessment of the limb to decide on appropriate treatment.  This needs to be done either here in Australia, or back in his own country where he was previously treated.

8. The applicant departed Australia on 16 January 2018 and his evidence is that he consulted his surgeon in Pakistan for further treatment before returning to Australia on 13 February 2018. 

9. It was during this absence from Australia that the applicant’s enrolment in his (previously deferred) course was cancelled by his provider on 25 January 2018; according to PRISMS, for “non-payment of fees”.  The applicant’s evidence is that this cancellation came about due to a “miscommunication” between him and the course provider in respect of his circumstances.

10. The Tribunal found the applicant’s consistency in the recounting of these events, and the weight of documentary evidence he provided to corroborate them, persuasive.  Whether these events, particularly in respect of his dealings with his course provider, may have been better managed is a matter of conjecture with the benefit of hindsight. 

11. Overall, the Tribunal is persuaded that the circumstances that the applicant found himself in were beyond his control and that he acted reasonably and promptly in dealing with them as they manifested.   The Tribunal places particular weight on this factor in his favour.

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

1. The applicant’s evidence to the Tribunal is that he is now well enough to continue his studies and has chosen to undertake a Bachelor of Business rather than his initial Bachelor of Computer Science (Honours).  He states that his reason for taking this course is that his academic interests have moved from the computer and IT sector, where he considers that he is sufficiently well-qualified, to obtaining business qualifications.  He stated that he wishes to pursue a career in business and management and his choice is to continue his study in Australia.

2. The Tribunal does regard this as a “compelling” need, though it does disclose a reasonable motive.  In all of the circumstances, however, the Tribunal does not weigh this factor in the applicants favour.

The extent of compliance with visa conditions

1. The applicant was responsible for a breach pertaining to his visa.  His visa was granted in August 2015 and, despite completing some of his studies, his course and his student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing his course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling his visa on account of the applicant’s particular circumstances.

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

1. The Tribunal accepts that the applicant has invested financial resources in furthering his education in Australia, however he cited no particular hardships in his evidence to the Tribunal should his visa be cancelled. 

2. In the giving of his evidence the applicant presented as a confident and able young man who gave the impression of having developed a determination to rise to the challenge of his injury.  He presented his evidence with without an air of victimhood and placed the emphasis of his case on explaining the factual challenges his injury presented to his study circumstances in Australia rather than the emotional, financial or psychological hardships he has likely experienced.

3. In all of the circumstances the Tribunal does not weigh this factor either in favour of or against the applicant.

Past and present behaviour of the visa holder towards the department

1. The delegate noted the following in his decision record:

   [The applicant] did not raise any specific mailers relevant to this factor. There is no information before me to suggest he has been uncooperative with the Department or Departmental staff.

2. The Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on 4 December 2018.  The delegate’s decision record notes that the applicant provided a written response to the NOICC on 5 December 2018.  In its material aspects the applicant’s response was consistent with his evidence to the Tribunal.

3. In the context of the whole of the evidence, including the manner of the applicant’s presentation before the Tribunal, the Tribunal is persuaded that the applicant’s prompt response to the NOICC is consistent with a willingness on his part to engage with the Department to resolve his breach of condition 8202 of his visa.  The Tribunal weighs this factor slightly in the applicant’s favour.

Whether there would be consequential cancellations under s.140

1. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor in the applicant’s favour.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

2. There is nothing to indicate the applicant would not be able to return to Pakistan.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

Conclusion

1. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal has found however that the circumstances in which the breach occurred were beyond his control and that he acted reasonably and promptly in dealing with them as they manifested.   The Tribunal places particular weight on this factor and, when combined with the applicant’s recognition of his breach of his visa condition and his willingness to engage with the Department to resolve it, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Damian Creedon
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.