Sabin (Migration)

[2020] AATA 723

Sabin (Migration) [2020] AATA 723 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Ana Sabin

CASE NUMBER:  1707553

HOME AFFAIRS REFERENCE(S):          BCC2017/716717

MEMBER:Lynda Young

DATE:16 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 March 2020 at 6:03am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – no appearance by applicant at hearings – claim of medical grounds for non-appearance, but no documentation provided – father’s illness – applicant’s physical and mental health – no approach to education provider – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), (3), 119, 362B, 379A(5),

Migration Regulations 1994 (Cth), Schedule 2, Schedule 8, condition 8202(2)(a)

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148

Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Class TU Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa, granted on 12 May 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3. On 17 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 15 August 2016.  The applicant responded to the NOICC on 31 March 2017 (NOICC Response).

4. On 4 April 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 15 August 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5. The applicant applied to the Tribunal for review of the decision on 8 April 2017, and attached to his application, a copy of the NOICC and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6. By letter emailed to the applicant on 13 January 2020 (hearing invitation), the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 31 January 2020 at 10:30AM (scheduled hearing). The hearing invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted, make a decision on review without taking any further action to allow or enable the applicant to appear before it.

7. On each of 23 January 2020 and 30 January 2020, the Tribunal sent the applicant reminders by SMS about the scheduled hearing.

8. No response to the hearing invitation was received by the Tribunal, and no transmission or delivery failure notices were received in response to the Tribunal’s email and SMS messages.

9. The applicant failed to appear before the Tribunal at the scheduled hearing on 31 January 2020 at 10:30AM.

10. On 12 February 2020, the applicant telephoned the Tribunal and advised he had not attended the scheduled hearing on 31 January 2020 as he was assaulted by four people and was in hospital overnight 30 January 2020.  The applicant told the Tribunal he had medical documents supporting his explanation, and agreed he would provide them to the Tribunal along with a written explanation of the circumstances causing his non-attendance at the scheduled hearing.

11. Prior to the time of making this decision, the Tribunal has not received from the applicant or anyone on his behalf, the written explanation and medical documents the applicant agreed on 12 February 2020 he would provide (as referred to in paragraph 10), or any written explanation for his non-attendance or any documents including medical certificates, submissions, or written responses to the hearing invitation.

12. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

13. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    ISSUES

14. Under s.116 of the Act, the Minister may cancel a visa if she or he is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

15. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

16. In this case, condition 8202 was imposed on the applicant’s student visa.

17. Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires the applicant:

    a.    be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

    b.    has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    c.     has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

18. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or Regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

19. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

    a.    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;

    b.    the extent of compliance with visa conditions;

    c.     degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    d.    circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    e.    past and present behaviour of the visa holder towards the Department;

    f.   whether there would be consequential cancellations under s.140 of the Act;

    g.    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;

    h.    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation;

    i.   if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

    j.   any other relevant matters.

20. The issues for the Tribunal’s determination in this case are:

    a. does the ground for cancellation in s.116(1)(b) of the Act exist?

    b. if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

    EVIDENCE ON THE APPLICATION

21. On 8 April 2017, the applicant filed with the Tribunal his application for review of the decision attaching, in support of his application, copies of the NOICC and the Decision Record.

22. The Tribunal, in its ‘Acknowledgement of Application’ letter emailed to the applicant’s representative on 12 April 2017 (application acknowledgment), requested the applicant provide, as soon as possible, material or written arguments he wished the Tribunal to consider, or any other material he believed supported his application, including a statement explaining why he disagreed with the Department's decision.

23. Inclusive of the scheduled hearing, the Tribunal has invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on six occasions.

24. By letter emailed to the applicant on 16 April 2019, the Tribunal invited the applicant to ‘appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case’ at a hearing on 6 May 2019.  The invitation also stated ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’ The hearing was not able to proceed on 6 May 2019 and was rescheduled by the Tribunal.

25. By letter emailed to the applicant on 9 May 2019, the Tribunal invited the applicant to ‘appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case’ at a hearing on 13 June 2019.  The invitation also stated ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’  On each of the 5 June 2019 and 12 June 2019, the Tribunal sent a hearing reminder by SMS to the applicant’s mobile telephone, reminding him his hearing was on 13 June 2019. 

26. On 12 June 2019, the applicant telephoned the Tribunal, said he was unwell and unable to attend the hearing tomorrow on 13 June 2019, either in person or by telephone. The applicant was advised to make his request for hearing postponement in writing, with necessary evidence. Later on 12 June 2019, the applicant emailed the Tribunal stating:

    I have called you this morning to let you know my medical condition. I am very sick due to cold and fever and cant even speak due to the enlarged torncil. Im not in a good condition to talk to the hearing tomorrow. So it is my humble request to all the members that you consider this situation and postpone the hearing at a later date. Im attaching my medical certificate to this email.

27. The medical certificate attached to the applicant’s email stated the applicant was ‘suffering a medical condition and would be unfit for work’. The presiding Member directed the Tribunal telephone the applicant to inform him that, unless a medical certificate stating he was unfit to attend a hearing in person or by telephone was provided to the Tribunal the hearing would proceed. The applicant subsequently provided a medical certificate stating he was unable to attend the hearing in person or by phone. The Tribunal granted the applicant’s requested postponement and the hearing scheduled for 13 June 2019 did not proceed.

28. By letter emailed to the applicant on 1 July 2019, the Tribunal invited the applicant to ‘appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case’ at a hearing on 2 August 2019.  The invitation also stated ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’  The hearing was not able to proceed on 2 August 2019 and was rescheduled by the Tribunal.

29. By letter emailed to the applicant on 16 August 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 11 September 2019. The invitation also requested the applicant ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’ On each of 4 September 2019 and 10 September 2019, the Tribunal sent a hearing reminder by SMS to the applicant’s mobile telephone, reminding him his hearing was on 11 September 2019.

30. On 10 September 2019, the applicant emailed the Tribunal, stating:

    I have been suffering from viral infection for the past few days which has made my throat sore and horse voice. It is really difficult for me to even swallow water at this point. Im attaching my doctors certificate as an evidence to my illness. Please accept my apology that it is not possible for me to speak tomorrow infront of the members in this condition. I wud really apprciate if u grant me another date.

31. The attached medical certificate provided the applicant had ‘a medical condition, viral illness with laryngitis (sore throat and horse voice) and will be unfit for work from 10 September 2019 to 12 September 2019 inclusive’.

32. The Tribunal’s response, emailed to the applicant on 11 September 2019, stated:

    The presiding member has considered the request carefully but has decided not to postpone the hearing. The medical certificate provided in support of the application for postponement does not certify the applicant as unfit to attend the hearing, either in person or by telephone; the Tribunal is not satisfied the applicant's medical condition provides sufficient reason to postpone the hearing. Accordingly, the hearing will proceed as scheduled.

33. The applicant responded by email to the Tribunal on 11 September 2019, further requesting hearing postponement, which was granted by the Tribunal and the hearing scheduled for 11 September 2019 did not proceed.

34. By letter emailed to the applicant on 10 January 2020, the Tribunal invited the applicant ‘to appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case’ at a hearing on 27 January 2020. The invitation also requested the applicant ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’ The hearing was not able to proceed on 27 January 2020 and was rescheduled by the Tribunal in accordance with the hearing invitation. The hearing invitation also requested the applicant ‘Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’ The Tribunal sent the applicant hearing reminders by SMS on each of 23 January 2020 and 30 January 2020, reminding him his hearing was on 31 January 2020.

35. The applicant did not appear at the scheduled hearing to give evidence and present arguments as invited and despite the Tribunal requesting he do so, did not provide the Tribunal with any statement explaining why he disagreed with the decision, and other than those provided with his application and the medical certificates attached to his applications for hearing postponement, did not provide any documents or other material supporting his application or any submissions or written arguments relating to the issues in his case, or the grounds for cancellation or why his visa should not be cancelled, or at all. In other words, excluding the information contained in and medical certificate attached to his hearing postponement applications, the applicant has not provided the Tribunal with any further information than was provided to the Department. None of the information contained in, or medical certificates attached to, the applicant’s hearing postponement applications have any relevance or bear on any of the issues requiring determination on the review application.

36. As a result, the evidence before the Tribunal on this review application comprises:

    a.    the application, including the attached NOICC and the Decision Record; and

    b.    the Department’s NOICC dated 17 March 2017 and the applicant’s NOICC Response dated 31 March 2017.

    The NOICC

37. The Department’s NOICC issued 17 March 2017, notified the applicant it intended considering cancellation of his visa as, based on PRISMS evidence, it appeared he had not been enrolled in a registered course of study since 15 August 2016, possibly breaching visa condition 8202(2)(a).  The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

    The NOICC Response

38. The applicant’s NOICC Response provided on 31 March 2017 comprised:

    a.    bundle of investigative diagnostic and medical imaging and interventional cardiology reports for the applicant’s father with various dates between 2 June 2015 and 19 January 2017;

    b.    report of Dr Mahbubor Rahman, Senior Consultant Cardiologist, Labaid Cardiac Hospital dated 29 March 2017, regarding the applicant’s father, aged 61 years, stating:

    This is to certify that Mi-. Md. Abdul Mabin, Age-61 years …has been suffering from high blood pressure, diabetes, Fatty liver and ·obesity for the past 02 years and has been under my treatment since then. On 4 June, 2016 he came to me with sickness. I diagnosed it as a minor heart attack. I kept him under my strict supervision for 05 days in the ICU and released him. In mid August, 2016, his health issues become severe. Though I treated him and put him under strict of medication.

    On January 17, 2017 Mr. Mabin got admitted to Labaid Cardiac Hospital with severe chest pain. After admission he was treated conservatively and coronary angiogram was done on 18.01.2017 which revealed coronary artery disease - triple vessel disease and recommended for CABG surgery. Due to obesity, family members, patient and cardiac surgeon agree to do PCI but not to do surgery. Then on next day PCI to ·RCA and LAD was done. The procedure was· tolerated well. There was no complication during and after the procedure. Now he is under a strict routine cheek up under my supervision.

    c.     Medical Certificate of Emilie Russell, Canterbury Hospital, dated 27 July 2016, certifying the applicant was treated/admitted on 27 July 2016 ‘suffering from elbow injury’, and ‘unable to attend work/school from 27/07/2016 to 29/07/2016’;

    d.    Canterbury Hospital, ED Discharge Referral for the applicant, attendance date 27 July 2016, stating the applicant presented ‘after alleged assault’ by 4 males on 27 July 2016, in which he was hit ‘with a piece of wood’ to the ‘left side of his leg and left elbow’ resulting in a soft tissue injury to the left elbow, described as ‘mild swelling’ and was:

    advised to seek counselling if concerns re mental health GP review in 2- 3 days if no improvement or earlier if any concerns …

    e.    invoice of Bill Singh, Consultant Psychologist, dated 29 March 2017;

    f.   report of Bill Singh, Consultant Psychologist, dated 29 March 2017 for the applicant, ‘written to provide a clinical assessment of his mental health due to his personal and challenging circumstances which appear to have impacted on his capacity to meet his study obligations’ and relevantly stating:

    Mr Sabin attended his clinical assessment interview on 28.03.2017. He presented as depressed and highly anxious about his personal state of affairs.

    Family Structure

    His family structure is made up of his parents, father, 62 and mother, 55, who live in Dhaka, Bangladesh. They have 2 children with Mr Sabin being the first-born son and his younger brother, 21 years old. Both sons are currently in Australia as overseas students pursuing their tertiary education. This is the first time Mr Sabin has been so far from home away from his parents. He further disclosed that he returned to Dhaka in January this year to get married to his wife who is currently living there pursuing her tertiary education in Architecture.

    Arrival into Australia

    Mr Sabin was born in 1990 in Dhaka and completed his basic schooling successfully. He then chose to pursue further education in Australia. He came to Australia in 2010 to pursue tertiary studies in Accounting. He disclosed being in the latter part of his Bachelor Degree in Accounting.

    However, Mr Sabin disclosed that his personal circumstances took a turn for the worse and his concentration on his study obligations was affected negatively. He explained that his family has been undergoing severe stress from the deteriorating health of their father  He narrated that due to the seriousness of his father's medical issues and hospitalisation, he became depressed and anxious. Having grown up so close to his father for almost all his life until almost 20 when he left for Australia, the thought of his poor health and daily suffering upset him to the point that he was frequently close to panic. He disclosed feeling 'scared' as he was close to his parents.

    Mr Sabin added that thus, his ability to focus on his studies plummeted as his sleep became problematic despite attempts to maintain his sleep hygiene. He disclosed feeling flat and distracted while also feeling anxious about his lowered sense of efficacy as a first-born son to his father. He disclosed that his father suffered multiple heart attacks involving follow-up surgery and hospitalisation. Being so far away from home, Mr Sabin felt helpless which further exacerbated his sense of depression and anxiety. He disclosed that he 'cannot do anything to help'. He added that his father who was obese had lost weight from 108 kg to 86 kg. He admitted that his father looks 'sick; can't see him like that'...

    Assault Incident

    Mr Sabin further disclosed that in July 2016, he experienced an assault incident which required hospital treatment (elbow injury) as well as experiencing aspects of Post-Traumatic Stress Disorder which heightened his anxiety and depression...

    Discussing his inability to study from mid-2016 until this month, he felt that his mental state distracted him to a great degree and his personal circumstances was beyond his control. He explained feeling he is in a better state of mind since he has been advised to contact a psychologist. He was advised to be more vigilant in future regarding his study obligations and he was receptive to such future cautionary behavior.

    …

    Professional Evaluation

    It is clear from the clinical evidence provided that Mr Sabin was experiencing from- depression, anxiety and stress. He presented as someone whose resilience has been compromised and he has developed psychological responses which has been detrimental to his study obligations. Exacerbating these responses are his father's deteriorating health issues which although under acute hospital care, does not seem to present with positive health outcomes unless realistic lifestyle changes are ensured and sustained. There also appear to be grief issues and PTSD issues which may be alleviated through on-going counselling and support.

    I strongly feel that consideration should be granted to Mr Sabin so that a stabilization of his psychological condition can be reached and, as such, improve and optimise his functioning as a student attempting to attain his career goals.

    Recommendations:

    In my professional opinion, Mr Sabin is recommended the following treatment plan.

    Mr Sabin is recommended to:

    Continue psychological counselling — he has been advised to seek such services within the Welfare Services where he studies or seek out external counselling services. Therapy should be within the Cognitive Behavioural Therapy framework where his depression and anxiety can be alleviated and to continue to learn skills in the management of his psychological condition.

    Consult with a GP if. his physical health deteriorates and if his sleep or migraine issues resurface.

    With regards to his studies, individually tailored consideration is recommended for his challenged levels of concentration and motivation because of his depression and anxiety.

    In conclusion, it is my professional opinion that Mr Sabin is ready to continue his studies while ensuring that he follows the recommended plan above.

    …

    Note: Mr Sabin is booked for a follow up appointment with me on 30.03.2017

    Confirmation of Enrolment (CoE) 8B515F70 obtained 21 March 2017 , for enrolment into Group Colleges Australia (GCA), Bachelor of Accounting, course start date 8 May 2017, course end date 1 May 2020, for which the applicant had paid the Initial Prepaid Tuition Fee of $1,309 for the period of 8 May 2017 to 8 July 2017. The total tuition fee for the course was $31,416 …

    g.    applicant's written statement in response to the NOICC of 17 March 2017 (applicant’s statement), stating:

    …I would like to explain my following circumstances for your kind consideration.

    I was studying in AIH in Bachelor of Business. After studying 3 semesters I have lost my interest in Business and I wanted to do Bachelor of Accounting. I applied in GCA but I was told by GCA to do either EAP course or vocational course at first to meet the entry requirements of Bachelor of Accounting course. I took admission in Certificate IV in Business in GCA which was due to complete by 24/03/2017. I. also received offer letter for Bachelor of accounting for May 2017 intake. In July 2016 I was victim of physical assault and racial rant (please see attached medical certificate). I was hit by piece of wood and was injured. I was unable to move for few days (please see attached medical certificate). I missed to submit my assignments and attend examination in my college. I was in trauma because I was not humiliated before in my life. I was alone and far from my family. Soon after the incident, my father had heart attack in the mid. of August 2016 (Please see attached medical certificate). I am the elder son of my father and my father is bearing all my educational expenses in Australia. I was very much stressed and anxious and both incidents interrupted my study. In January 2017 my father had massive heart attack again and I was suffering from mental distress.

    I explained my situation to college and they allowed me to take admission in Bachelor of Accounting in May 2017 intake after completing a special assessment criteria (please see attached bachelor CoE issued by GCA).

    I have also consulted a phycologist and his report will tell you details- about what I have been. through (Please find the detailed report and documents attached to the email).

    I am married and I have my wife in Bangladesh. And I have genuine intentions to study here and get back to my family as soon as I complete my bachelors.

    I do believe that I have not breached any visa condition. The situation was beyond my control.

    Reason to Study Bachelor (Major in Accounting) Degree:

    Accounting is a great career. It is an exciting career option. I have chosen this career because of the great opportunities associated with it. I will be able to contribute to the society through new developments in the field of Business. I will be taking these new developments to people, who will benefit by using them. Accounting career has got a good working condition and a balanced lifestyle. Accounting jobs are not just related to one industry. Many industries are now employing the skills of accounting professionals. The skills that I will learn by bachelor degree in accounting will help me to look for jobs across various industries. Employers and companies nowadays are spread all over the world. Having studied from one of the highly ranked Institute (UBSS), I can look for jobs across the globe.

    Accounting courses at UBSS are regularly updated to meet industry needs. I will get a mix of Accounting and technical skills and learn how to use accounting to solve business problems. The course is recognised by CPA, CA and ICA. After completing the course, I need to complete extra few subjects to be CPA/ CA (subject to meeting work experience requirements).

    Why I chose to study overseas:

    In Bangladesh there is a trend to give the priority to the candidates who have received qualification from overseas for job. Currently, accounting job is under supplied and demand for candidates graduated from Australia, USA and UK are soaring up. My Bachelor of Accounting qualification is accredited by ICA and CPA Australia. The qualification will help me to pursue my career to be a CPA while I will be working in Bangladesh in my chosen industry.

    Reasons to study in Group Colleges Australia (UBSS):

    I have chosen to study in Group Colleges Australia (UBSS) for my study destination because;

    At GCA more than 1500 students from 50 different countries are studying. I wish to have a rewarding student experience at GCA. Teachers and student advisors are highly qualified. More personalized way of learning. Also as I will be coming from a different curriculum in Bangladesh, small class size will help me to adjust in a better way. I will have access to social clubs, sports, events and more which will enhance my experience of learning.

    GCA is a great Institute. Studying here will give me the opportunity to work with the industry partners. As I am going for accounting degree so I will get the exposure from business partners. This Will help me a lot when I will go out to look for a job. Hands-on experience is an advantage for me while studying at as I can practice what I will be learning. The Faculty of commerce is Australia's leader in practice based on Accounting, Business and management education and research. The faculty provides computer laboratories for accounting practice and high bandwidth internet access for use in teaching and research. College has more than 35 years of market presence. Location of the college is very good and close to all public transports. College has state-of-the art facilities including online assignment submissions, online Moodie technology to retrieve the lectures from home, even on holidays.

    Additional Benefits staying and studying in Australia:

    Studying in Australia would be a great studying experience for me because it has;

    -         Moderate weather, having all four seasons same as in Bangladesh

    -         Multi-culture environment.

    Respect of all religions and all nationalities.

    Natural beauty to see.

    My future plans after studies:

    I am the eldest son and have responsibility to assist my parents after I complete my studies from Group Colleges Australia.

    A Bachelor of accounting degree from GCA (UBSS) will help me to propel my career in the field of commerce. I look forward to equip myself with the latest skills and knowledge so that I can be successful at the job place. I will have the career opportunities in many fields after completing my degree. I look forward to •be employed with some of the best commerce companies of the world. Accounting is a challenging field and I want to be a part of it. I would be in a position to grow in my career more easily as foreign qualification provide a very good enhancement in career growth in Bangladesh. Besides, my current employer is happy to provide me working opportunities after completing my studies from Australia, upon my return to Bangladesh. My future plan is to get accreditation from Australian Accounting body CPA, which I do believe to help me to be successful in my career.

    Living arrangements in Australia:

    I have been living in Australia for several years now with my friends who are also studying in different universities and colleges so it makes a good study atmosphere around. My Father has been supporting me all those times financially. I'm also working part time which meets my living cost and daily requirements perfectly.

    May I therefore request you not to cancel my student visa. I assure you that I will fully concentrate on my studies and will complete graduation and I will also always abide my visa conditions. I didn't breach visa condition 8202 as the situation was beyond my control. I have attached the following documents for your favourable consideration:

    1)       Copy of my Bachelor CoE

    2)       Copy of my medical papers and certificate

    3)       Copy of my Father's medical certificate

    4)       Copy of my Father's supporting medical documents

    5)       Copy of my psychologist's report

    Decision Record

1. The Decision Record sets out, relevantly, in summary:

   a.the applicant was granted a Student (Temporary) (Class TU) Subclass 573 Higher Education  Sector visa on 12 May 2015, with a stay period to 1 November 2017;

   b.the Department’s NOICC issued on 17 March 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 15 August 2016;

   c.the applicant, in his response to the NOICC emailed to the Department on 31 March 2017, stated he had not breached his visa conditions, and the situation was beyond his control. He also provided a copy of a CoE dated 27 March 2017;

   d.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 15 August 2016, in breach of visa condition 8202(2)(a);

   e.in his visa application, the applicant stated his intended purpose of travel to and stay in Australia was study;

   f.there was no evidence the applicant had been non-compliant with visa conditions other than with visa condition 8202;

   g.at cancellation, the applicant had not been enrolled in registered course of study for in excess of seven months whilst remaining in Australia on a visa issued for the purpose of study;

   h.although the applicant’s response to the NOICC did not raise or address any detail regarding hardship, the delegate accepted the applicant, if his visa were cancelled:

   i.    may be caused some hardship on being required to depart Australia but may be eligible for a Bridging Visa E, providing time for him to finalise outstanding matters;

   ii. if he did not voluntarily depart Australia, he would become an unlawful non-citizen and be liable for detention under s.189 and removal under s.198 of the Act;

   iii.he would be subject to s.48 of the Act, significantly limiting the classes of visa for which he may apply onshore;

   iv.he would be subject to public interest criterion 4013, and may not be granted a temporary visa for three years;

   i.the applicant may be caused some hardship as he had obtained, apparently in response to the NOICC, enrolment on 27 March 2017 in a Master of Professional Accounting course and commenced the course on 3 April 2017, although there was no evidence suggesting the applicant could not complete his studies outside Australia; 

   j.the applicant had not sought a deferment from his education provider to recover from his health issues until such time he was fit and able to return to study;

   k.the delegate accepted the applicant was injured in July 2016, amounting to circumstances beyond his control. However, the applicant’s own account was that he was expected to be fit for study after July 2016;

   l.the medical report from the applicant’s psychologist stated the applicant attended his clinical assessment interview on 28 March 2017, subsequent to the NOICC issuing. As the applicant had not provided any information to suggest he was, prior to being issued the NOICC, experiencing a health condition the delegate was not prepared to accept the applicant experienced a significant and ongoing health condition preventing him from studying,

   m.the delegate was not satisfied the applicant had demonstrated an intention to study given the applicant obtained the CoE provided with his NOICC Response subsequent to being issued the NOICC;

   n.the applicant had been cooperative with the Department and provided information when requested;

   o.cancellation of the visa would not result in any consequential cancellations of any dependent visa holders under s.140 of the Act;

   p.there was no information indicating cancellation would result in a breach of Australia's international obligations;

   q.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

   DOES THE GROUND FOR CANCELLATION IN S.116(1)(b) OF THE ACT EXIST?

   Did the applicant comply with condition 8202?

2. The applicant’s NOICC response does not categorically deny the applicant breached condition 8202. The applicant’s psychologist’s report specifically addresses the applicant’s ‘inability to study from mid-2016 until this month’. The Decision Record evidence that the applicant was not enrolled in a registered course of study from 15 August 2016 until obtaining the CoE on 27 March 2017 is uncontradicted.

3. The applicant had, as at the hearing date, been on notice of the ground on which his visa was cancelled for more than two years and nine months and in that time, despite the Tribunal’s requests in its review application acknowledgement and each of the six hearing invitations, has not provided any documents or submissions supporting his application and has not disputed any of the information or conclusions set out in the Decision Record in respect of the ground for cancellation or disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled.

4. The applicant failed to attend the hearing, and failed to give any evidence at hearing and present arguments or to provide details of his past studies in Australia as invited. He has not disputed any of the conclusions about his failure to be enrolled set out in the NOICC or Decision Record. As the Tribunal has not had the opportunity to take evidence at a hearing from the applicant about his studies in Australia or the issues in his case or in relation to the ground for cancellation or why his visa should not be cancelled, or at all, and as the applicant has failed to respond to Tribunal correspondence seeking documents or submissions supporting his application, the Tribunal is unable to be satisfied that the applicant was enrolled in any course of study between 15 August 2016 and 27 March 2017.

5. The evidence satisfies the Tribunal the applicant was not enrolled in a registered course of study between 15 August 2016 and 27 March 2017, in breach of visa condition 8202(2)(a).

6. The Tribunal is accordingly satisfied the ground for cancellation in s.116(1)(b) exists.

7. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

   Consideration of the discretion to cancel the visa

8. 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.

9. 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’.

10. The PAM 3 matters are addressed in the Decision Record. The applicant has not provided any material to the Tribunal or given any evidence at a hearing before the Tribunal disputing any of the information or conclusions set out in the Decision Record in respect of the PAM3 matters, or otherwise addressing the PAM3 matters or other circumstances for the Tribunal’s consideration in deciding whether to exercise its discretion to cancel the visa.

    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

11. The decision record states the applicant’s initially stated intended purpose of travel to and stay in Australia was to study. No contrary evidence is before the Tribunal. Accordingly, the evidence satisfies the Tribunal the applicant’s original intention for his travel to, and stay in, Australia was for the purpose of study.

12. On the evidence before the Tribunal, the applicant was not enrolled in any course of study from 15 August 2016 until he obtained a new CoE from GCA on 27 March 2017.  That CoE records the tuition fee for the period 8 May 2017 to 8 July 2017 was prepaid by the applicant. In the absence of any further or additional information about payment of tuition fee for the period after 8 July 2017, or of any part of the balance of the total tuition fee, the Tribunal is unable to be satisfied the applicant paid any further amount for tuition fees, and as a result, is unable to be satisfied the applicant was enrolled after 8 July 2017.

13. Prior to the scheduled hearing, the applicant has not been enrolled for a cumulative period exceeding three years.  He was not enrolled for a period exceeding seven months prior to cancellation, and has not been enrolled in the more than two-and-a-half-year period between when he was last enrolled on 8 July 2017 and the scheduled hearing. 

14. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for a period exceeding seven months prior to cancellation is significant, and weighs this factor in favour of cancellation.

15. The Tribunal is not satisfied the applicant’s originally intended purpose for his travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled for more than seven months pre-cancellation and more than three years in total is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not providing any of the material requested by the Tribunal and failing to attend the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

16. Nothing in the evidence before the Tribunal suggests the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. His non-engagement in study for which purpose his visa was granted for more than seven months pre-cancellation and more than three years in total together with his failure to participate meaningfully in his review application or the hearing, satisfy the Tribunal the applicant does not have a compelling need to remain in Australia.

17. The Tribunal gives this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

18. The only instance of non-compliance identified in the decision is the applicant’s failure to remain enrolled as required to comply with visa condition 8202(2)(a). Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for more than seven months pre-cancellation. The non-compliance is significant. The Tribunal weighs this factor in favour of cancelling the visa.

19. Other than his non-compliance with condition 8202, there is no evidence before the Tribunal of any non-compliance with any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

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

20. The delegate was unaware of any specific hardship that may be caused as a result of the cancellation of the applicant’s visa. Given the applicant's failure to attend the hearing and provide any evidence to the Tribunal in respect of any hardship consequent upon cancellation, the Tribunal is unable to be satisfied any specific hardship may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs in favour of cancellation.

21. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

22. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore.  The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re-entering Australia for up to three years as he may not meet the public interest criterion 4013.

23. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa.

    Circumstances in which ground for cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

24. The applicant’s medical and psychological court evidence, provided to the Department in his NOICC response, is uncontradicted.  That evidence satisfies the Tribunal:

    a.on 4 June 2016, the applicant’s father suffered a minor heart attack and was hospitalized for five days; (paragraph 38b)

    b.on 17 January 2017, following a period of deteriorating health becoming ‘severe’ in mid-August 2016, the applicant’s father was again hospitalised, and treated for severe chest pain caused by triple vessel coronary artery disease by stenting; (paragraph 38b)

    c.on 27 July 2016, the applicant suffered soft tissue injury to his left elbow secondary to an assault for which he was certified as unfit to attend work/school from 27 July 2016 to 29 July 2016, and was ‘advised to seek counselling if concerns re mental health’; (see paragraphs 38c and 38d)

    d.on 28 March 2017, the applicant sought counselling for the first time from psychologist Bill Singh. The applicant stated to Mr Singh: (see paragraph 38f)

    i.    he had become depressed and anxious to the extent he was frequently close to panic and felt scared due to the seriousness of his father's medical issues and hospitalisation, and his ability to focus on his studies plummeted as his sleep became problematic, and he felt flat, distracted and helpless which exacerbated his sense of depression and anxiety;

    ii.    in respect of his inability to study from mid-2016 until March 2017, his mental state distracted him to a great degree and his personal circumstances were beyond his control;

    iii.he was feeling he was in a better state of mind since he has been advised to contact a psychologist.

25. The applicant attributed his becoming depressed, anxious and suffering symptoms described to Mr Singh as feeling frequently close to panic, feeling scared and problems with sleeping, to his father’s medical issues and hospitalisation. More than nine months had passed by the time the applicant first sought counselling on 28 March 2017.  Just over eight months had passed since the practitioner who treated him on presentation to Canterbury Hospital after he was assaulted on 27 July 2016, advised him to seek counselling if he had concerns about mental health. 

26. By the time he presented to Mr Singh for counselling, the applicant was feeling he was in a better state of mind ‘since he has been advised to contact a psychologist’, and was no longer suffering an ‘inability to study’.

27. The applicant’s failure to seek treatment until after he was feeling in a better state of mind and after he was no longer suffering an inability to study is not explained in Mr Singh’s report or the applicant’s statement or at all. The applicant’s failure to attend for counselling until after the NOICC had issued is raised in the Decision Record by the delegate who was not prepared to accept the applicant experienced ‘a significant and ongoing health condition that would prevent him from studying, given he have  sic] not provided any information to suggest he was experiencing a health condition prior to the time of the Department's NOICC.’

28. The Tribunal, while accepting both the applicant’s statement and the psychologist’s report, has not been provided with any explanation for the applicant’s failure to seek counselling prior to 28 March 2017, in circumstances where he was suffering as the Tribunal has accepted, what the applicant described as serious psychological symptoms.  Whilst that evidence satisfies the Tribunal the applicant suffered circumstances beyond his control that would or did affect his ability to study, the evidence does not satisfy the Tribunal those circumstances were such that the applicant was unable to continue or prevented from studying or maintaining his enrolment.

29. Accordingly, the Tribunal is not satisfied the ground for cancellation arose in circumstances beyond the applicant’s control. The Tribunal weighs this factor in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

30. There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

    Whether there would be consequential cancellations under s.140

31. On the evidence before the Tribunal, cancellation of the applicant’s visa would not result in consequential cancellation of any dependent visa holders under s.140 of the Act. The Tribunal weighs this consideration neither in favour of nor against cancellation.

    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

32. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to three years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in force, result in his immediately becoming unlawful and liable to detention under s.189 of the Act or removal under s.198 of the Act.

33. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. 

34. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

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

35. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

36. Non-refoulement obligations are not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

1. Given the applicant did not attend the hearing and has not provided any information or evidence to either the Department or the Tribunal that he may be caused any problems upon return to his home country, the Tribunal cannot be satisfied there are any matters that would attract non-refoulement obligations.

2. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

3. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

4. The Tribunal considers these factors weigh neither in favour of nor against cancellation.

   If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

5. The applicant’s visa is a not a permanent visa.

   Any other relevant matters

6. The evidence before the Tribunal does not disclose any other relevant matters.

   CONCLUSION

7. In circumstances of the applicant’s failure to take any active role in the Tribunal’s review process or provide the Tribunal with any information or supporting material additional to that provided in response to the Department’s NOICC and failure to be enrolled for more than seven months pre-cancellation, when neither the purpose for which his visa was granted or the purpose of his travel to and stay in Australia could be achieved without enrolment, the applicant has not satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies.

8. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favour of cancellation of the visa outweigh the matters weighing against cancellation.

9. The Tribunal concludes the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Lynda Young
    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.