Sadiq (Migration)

[2020] AATA 2331

Sadiq (Migration) [2020] AATA 2331 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rizwan Ali Sadiq

CASE NUMBER:  1710211

HOME AFFAIRS REFERENCE(S):          BCC2017/1079822

MEMBER:Stephen Conwell

DATE:11 June 2020

PLACE OF DECISION:  Melbourne

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 11 June 2020 at 11:48am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – parents’ ill-health and applicant’s return to home country – too late to enrol for semester – study difficulty, enrolment at different institution and ongoing study – brother who finances study unable to pay fees – part-time work – genuine student and credible witness – finding marginally in applicant’s favour – decision under review set aside

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

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 that the applicant was not enrolled in a registered course and therefore had breached condition 8202 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 Departmental delegate's decision was previously reviewed by a differently constituted Tribunal (the 'previous Tribunal') on 14 June 2019, however as no decision has been handed down, and given the lengthy passage of time since the first hearing, the Tribunal determined to invite the applicant to a new hearing.

4. The Tribunal exercised its discretion to hold the hearing by telephone.

5. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant was represented in the review hearing by his registered migration agent (agent).

7. The applicant provided a copy of the decision record to the Tribunal.

8. The applicant participated in the telephone hearing on 10 June 2020 to give evidence and present arguments.  The applicant’s agent did not attend the telephone hearing.

9. 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

10. 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?

11. 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).

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

13. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 7 November 2015. By Notice of Intention to Consider Cancellation (NOICC) dated 21 April 2017, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study between 11 August 2016 and 4 May 2017 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

14. The applicant provided written responses to the NOICC, on 1 May 2017, 5 May 2017 and 6 May 2017. These responses are summarised below:

    ·      the applicant acknowledges his ‘study gap’, but claims that it arose through compelling circumstances beyond his control;

    ·      he first arrived in Australia on 20 November 2015. After successfully completing his foundation English program (ELICOS) at Western Sydney College he commenced his Bachelor of Information Technology (B.IT) at Western Sydney University (WSU).

    ·      he was experiencing some difficulty adjusting to the greater demands of his bachelor studies, but his problems were compounded by news of his father’s ill-health, which he describes as a ‘paralysis attack’;

    ·      the applicant requested WSU in July 2017 for a Leave of Absence, which was granted from 18 July 2016 to 21 Nov 2016;

    ·      the applicant departed for Pakistan in July 2016, returning  to Australia on 1 September 2016. Upon his return to Australia the applicant was advised that he could next enrol in the February 2017 intake, as it was too late for him to enrol in the final semester of 2016;

    ·      when his father’s health began to deteriorate the applicant again returned to Pakistan in November 2016 but stayed only a few weeks as his parents were concerned about his studies in Australia;

    ·      when he returned to Australia in December 2016, the university year had ended. During the summer break the applicant explored his study options and received a conditional offer of enrolment from the University of the Sunshine Coast (USC). However the applicant was not able to enrol at USC in the February intake since his Release Letter from UWS did not  arrive in time;

    ·      the applicant was ‘pursuing’ a Bachelor of Information Technology (IT) from Federation University, commencing in July 2017;

    ·      he is a ‘genuine and good student’.

15. The applicant’s responses to the NOICC included evidence of:

    ·      his father’s medical condition – a medical note dated 22 March 2016 from Al-Shad Liver & Diabetic Clinic in Pakistan;

    ·      his travel to and from Pakistan;  and

    ·      his conditional offer of enrolment from USC.

16. The applicant’s agent provided a written submission to the previous Tribunal on 12 June 2019, comprised of:

    ·      written submission dated 11 June 2019;

    ·      confirmation of Enrolment (COE) (Bachelor of IT)  18.11.18 to 31.12.19

    Federation University;

    ·      ELICOS Cert and Transcript;

    ·      a medical note dated 22 March 2016 from Al-Shad Liver & Diabetic Clinic in Pakistan concerning his father’s (Mohammad Sadiq) medical condition. (Other documents spell the applicant’s father’s first name as ‘Muhammad’ the Tribunal is prepared to accept that this document also pertains to the applicant’s father);

    ·      lipid profile report dated 20 November 2016 concerning his father’s cholesterol profile ;

    ·      WSU transcript dated 12 February 2016 for English for Academic Purposes.

17. The applicant’s agent provided a further submission to the previous Tribunal on 21 June 2019, comprised of:

    ·      written submission dated 21 June 2019;

    ·      medical certificate dated 23 July 2016 stating that Muhammad Sadiq was hospitalised between 26 June 2016 to 23 July 2016 at Allama Iqbal Memorial Teaching Hospital, Pakistan;

    ·      medical certificate dated 25 November 2016 stating that Muhammad Sadiq was hospitalised between 19 to 25 November  2016 at the same hospital he previously attended in Pakistan;

    ·      outpatient ticket from the same hospital dated 19 November 2016 (the name is illegible however the Tribunal is prepared to accept that it pertains to the applicant’s father);

    ·      academic transcript dated 19 June 2019 (B. IT) Federation University.

18. On the morning of the hearing the applicant tendered a current COE for a Bachelor of Networking and Telecommunications at Polytechnic Institute for the period 29 June 2020 to 25 June 2023. This enrolment was created on the day of the scheduled hearing.

19. The applicant’s oral evidence at the hearing is summarised below:

    ·prior to arriving in Australia the applicant had commenced study for a Bachelor of IT in Pakistan which he discontinued in order to come to Australia;

    ·the applicant is a 25-year-old whose immediate family is comprised of his parents, elder brother and three sisters, all living in Pakistan. He has no family in Australia;

    ·his father has a history of high blood pressure, leading to him suffering a mild stroke in mid-2016;

    ·the applicant confirmed the history of events as set out in his response to the NOICC and in the written submissions made by his agent;

    ·when he returned to Australia from Pakistan on 1 September 2016 the applicant had difficulty enrolling for the next semester starting in February 2017 since he had previously failed three units. He then departed Australia for Pakistan again on 29 November 2016, before returning to Australia on 17 December 2016;

    ·during late 2016 he was applying for enrolment in several educational providers, through the assistance of a migration agent. He had received provisional Letters of Offer from  ATMC (associated with Federation University) and from that University of Sunshine Coast (USC). Both offers required that the applicant have passed a minimum of two subjects as well as a Release Letter from his then current university, UWS;

    ·at that time the applicant had passed only a single subject and was having trouble obtaining a Release Letter from UWS. However he was eventually able to accept the offer from ATMC for study commencing in May 2017, leading to a Bachelor of IT to be conferred by Federation University;

    ·when the applicant’s Student Visa was cancelled by departmental decision of 11 May 2017, the Bridging visa E initially issued to him conferred no study rights, however the applicant successfully applied to the Department for the right to continue his studies whilst on a Bridging visa;

    ·in mid-2019 the applicant failed two units of his bachelor course, which he attributes to the stress of having to attend his Tribunal hearing coupled with the news that his mother was having asthma attacks which required medical attention and medication;

    ·the applicant was unable to pass all his exams in 2019. Had he done so he would have completed his bachelor degree at the end of that year;

    ·the applicant sought to re-enrol and resume his studies at Federation University in 2020, however he was unable to do so. He sought to enrol elsewhere in early 2020 however his elder brother (who finances his studies) was unable to pay the applicant’s enrolment fees due to financial difficulties which were exacerbated by the coronavirus pandemic;

    ·his new COE created on 10 June 2020 (the day of the scheduled hearing) records his enrolment in a Bachelor of Networking and Telecommunications at Polytechnic Institute Australia. The course running from 29 June 2020 to 25 June 2023;

    ·the applicant claims that this course is very similar to the previous Bachelor of IT. He expects to be granted 12–14 subject credits for his previous studies which would mean that he could expect to complete the course in perhaps 18 months, rather than three years;

    ·whilst onshore he has been working one or two days in a kebabs shop and occasionally works as an Uber driver. The money he earns pays for his living expenses however his studies are financed by his elder brother in Pakistan;

    ·the health of both his parents have improved;

    ·he has two married sisters who live with their own families; he has a younger sister who lives with his parents. His elder brother is married and lives with his own family, however he looks after the applicant’s parents. He has no family in Australia.

20. Having regard to the information in the PRISMS as outlined in the decision record and the other evidence before it, the Tribunal finds that the applicant was not enrolled in a CRICOS registered course between 11 August 2016 and 4 May 2017. The Tribunal accepts that the applicant was granted an approved Leave of Absence from 18 July 2016 to 21 November 2016, nevertheless the Tribunal finds that he breached condition 8202(2)(a) of his visa after his return to Australia on 17 December 2016 when he remained onshore for over four and a half months without enrolment in a registered course.

21. 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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that 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.

    Consideration of the discretion to cancel the visa

23. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

24. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘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

25. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. Taking into account his approved Leave of Absence, the applicant has not been enrolled in a registered course of study for the period between 18 December 2016 and 4 May 2017.This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies for a period exceeding four months. At hearing the applicant confirmed that he remained onshore during the entire period of his non-enrolment. 

26. The Tribunal has regard to the evidence provided post-hearing comprised of email correspondence in early 2017 concerning the applicant’s attempts to obtain enrolment in a registered course. This corroborates the applicant’s oral evidence of his efforts to re-enrolled in studies prior to receipt of the NOICC. The Tribunal finds this supports the applicant’s claims to be a genuine student. The foregoing considerations weigh slightly in favour exercising its discretion to set aside cancellation of the visa.

    The extent of compliance with visa conditions

27. At time of visa grant, the Department made the applicant aware of the fact that he is required to be enrolled in a registered course of study for the duration of his Student visa. The Tribunal considers it was the applicant’s responsibility to be aware that any non-compliance with those conditions would adversely affect his eligibility to hold the Student visa.

28. The Tribunal finds that the applicant was not enrolled in a registered course of study for over four months in breach of visa condition 8202. Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal give this little weight towards the visa being cancelled.

29. Whilst the Tribunal acknowledges the visa holder is currently enrolled in a registered course of study, the Tribunal is satisfied the ground for cancellation under section 116(1)(b) still exists because:

    · s116(1)(b) states the Minister has the power to cancel a visa if satisfied that its holder has not complied with a condition of the visa. This means the visa holder is subject to a discretionary cancellation (not mandatory cancellation) in which their circumstances are taken into assessing non-compliance with a visa condition;

    ·      this refers to previous non-compliance on the current visa. If a Student visa holder was not enrolled in a registered course of study for any period of time while on their current Student visa, they have not complied with condition 8202(2)(a);

    ·      while the visa holder has held his Student visa, he was not enrolled in a registered course between 18 December 2016 and 4 May 2017 without an approved Leave of Absence for this period. Therefore, between these dates the visa holder was not complying with condition 8202(2)(a) even though he remained onshore for  all of this period.

30. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa.

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

31. The applicant claims that he is keen to finish his bachelor studies in Australia yet he did not persist with his studies at Federation University. Had he done so he might have completed his bachelor degree in December 2019. The applicant claims that the stress of his impending  Tribunal hearing in June 2019 coupled with the news that his mother’s asthma attacks caused him a great deal of concern, resulting in his failing two of his subject units that year.

32. The Tribunal asked the applicant what enquiries he had made to pursue his IT studies back in his home country of Pakistan. He confirmed the evidence in the written submissions that if he is required to return to Pakistan without a university degree he would have to ‘start again’ as his previous studies would not be given credit, due to his lengthy time away.

33. The Tribunal accepts that the applicant’s father suffered some medical issues requiring hospitalisation in 2016 and his mother experienced some breathing difficulties or asthma attacks in 2019, which no doubt was of some concern to the applicant. However both his father and mother appear fortunately to have improved in health since then.

34. The Tribunal accepts that cancellation of his Student visa has caused the applicant personal detriment and inconvenience. The fact that he sought and was granted study rights under his Bridging visa E underlines the applicant’s claims to be a genuine student.

35. The Tribunal accepts the submission that due to the time he has spent in Australia he would have to start university studies all over again should he return to Pakistan without a tertiary qualification. The Tribunal finds that cancellation of his Student visa would result in considerable hardship to the applicant and adversely affect his pursuit of tertiary qualification. Given the circumstances above, the Tribunal find that the continuation of the cancellation would cause the applicant undue hardship; the Tribunal gives this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

    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

1. The circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain enrolment in a registered course of study between 18 December 2016 and 4 May 2017 without an approved Leave of Absence, which led to his non-compliance with visa condition 8202. 

2. Whilst the Tribunal accepts that the applicant’s father ill-health in 2016 and his mother’s ill-health in 2019 would have been of concern to the applicant, the Tribunal is not persuaded that these circumstances, whilst unfortunate, could be described has extenuating or beyond the applicant’s control.

3. The applicant confirmed in oral evidence that he was not enrolled for this four month period and that he remained onshore for all of this period. He claims that he was having difficulty in enrolling in a suitable course. However the delegate notes in the decision record that the applicant was able to find enrolment within two weeks after being served with a NOICC,

4. The Tribunal has regard to the delegate’s findings however having considered the written submissions and having the benefit of the applicant’s oral evidence the Tribunal can discern no attempt by the applicant to avoid study, mislead his provider or the Department. The Tribunal is satisfied that the applicant is a genuine student whose academic progress has been impeded by an unfortunate combination of his parents’ health issues, his failing to pass a number of subjects and the timing of his two return visits to Pakistan in 2016. Whilst the Tribunal does not consider the circumstances to be extenuating or beyond the applicant’s control, the Tribunal is prepared to give the circumstances favourable consideration since on balance, the Tribunal finds the applicant to be a genuine student and credible witness. The Tribunal is therefore prepared to give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

   past and present behaviour of the visa holder towards the Department

5. The applicant’s responses to the NOICC appears to be genuine and truthful. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.

   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

6. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the circumstances as set out above this would be manifestly unfair and the Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.

   whether there would be consequential cancellations under s.140

7. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

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

8. This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.

   Any other relevant matters

9. The Tribunal notes that the applicant’s visa would otherwise have expired on 31 March 2019. He will have to apply for a new visa within a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU visas Subclasses 570 to 576 have been replaced by Class TU Subclass 500 Student visas as from 1 July 2016.

10. The Tribunal finds that there are no other relevant matters.

    Summary

11. The Tribunal is mindful of the period of non-compliance and the seriousness of the breach, however it does not consider the period of non-compliance to be lengthy. Having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.

12. The Tribunal is accordingly satisfied that the applicant is genuinely motivated to complete his full-time studies and uphold the conditions on any future Student visa. While the degree of hardship to be faced by the applicant is not assessed to be significant and the accepted circumstances leading to non-compliance are not assessed as being beyond the applicant's control, the Tribunal finds there are more factors, cumulatively considered, in favour of having his visa cancellation set aside.

13. The applicant should note that the Tribunal only reached this decision by finding marginally in his favour.

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

    DECISION

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

    Stephen Conwell
    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.