Shaikh (Migration)

Shaikh (Migration) [2019] AATA 4112 (3 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sahil Mazain Shaikh
CASE NUMBER:  1903615
HOME AFFAIRS REFERENCE(S):           BCC2019/187067
MEMBER:Elizabeth Tueno
DATE:3 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 September 2019 at 12:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling need to remain in Australia to complete studies – death of relative –funeral and other associated expenses – financial difficulties – victim of an attack – impact on mental state – 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

This is an application for review of a decision dated 14 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a 28 year old Indian national. He was granted a student visa on February 2017 in relation to a Master of International Tourism and Hotel Management course at Southern Cross University. On 14 February 2019, the delegate cancelled his visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancelling the visa were not outweighed by the grounds for not cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant confirmed that he commenced the course on 20 February 2017 and that it was a two year course. He said that he completed the first two semesters in the first year however he stopped attending classes in December 2017. The reasons for this are discussed below.
As mentioned in the delegate’s decision, the information in the PRISM records available to the Department indicated that on 19 January 2018, the applicant’s enrolment in the course was cancelled by Southern Cross University due to unsatisfactory course progress. On 29 November 2018, the applicant enrolled in general English course through Brighton Education Services Pty Ltd.
The applicant accepted at the hearing that he had breached condition 8202 as he is not currently enrolled in a course. He stated although he had enrolled in the English course in November 2018, his enrolment was cancelled by Brighton Education Services Pty Ltd on 14 February 2019 as a result of his visa being cancelled. The applicant confirmed that he is not currently enrolled in a course because his visa was cancelled.
Subclause 8202(2)(b) requires a visa holder to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level, or higher level than, the registered course in relation to which the visa was granted.
On the evidence before the Tribunal, the applicant has not been enrolled in a registered course that would provide him with a qualification at a Master degree level or higher for which he was granted the visa since 19 January 2018. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or 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’.
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
As noted above, the applicant is a 28 year old Indian national. In a document titled, “abridged chronology of events and incidents that impacted on studies”, the applicant stated that he arrived in Australia for the purpose of studying the Masters course, a two year degree in Hotel Management. He gave oral evidence that he completed the first year, being two semesters before he stopped attending the course due to a sudden death in his family. The applicant had to deal with this, being the only family member in Australia, which involved returning the body to India.
Since his visa was cancelled in January 2018, he enrolled in a general English course and studied for a couple of months before this enrolment was cancelled after his visa was cancelled.
He said that he would like to resume his studies in the Masters course so that he can obtain a good job afterwards. He said that he would feel very bad if he could not continue to study.
There was no evidence presented at the hearing, nor in the department’s file, that the applicant came to Australia for any purpose other than to study. He has stated that he would like the opportunity to resume his studies in the same course that he was granted the visa to study. The Tribunal considers that due to the circumstances in which the applicant had to put his studies on hold, he has a compelling need to remain in Australia to complete his studies. The Tribunal gives this weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant gave evidence that his cousin, who was living in Sydney, died in mysterious circumstances. In the chronology document he provided, he stated that his cousin died on 23 November 2018 and that a post-mortem report could not determine the exact cause of death. The applicant stated that he had to go to Sydney for a week and wait for the body to be prepared so that he could then return to India with the body. He said that at his own personal expense of $!4,000. He said that he stayed for the funeral and then returned to Australia on 11 December 2018 but upon his return, he could not afford to pay the tuition fees for the following year.
The chronology also stated that on 8 January 2018, the applicant was attacked at Altona Beach when he was walking along with a friend. The document stated that North Altona Police station had a record of this incident.
In the chronology, the applicant stated that due to these set-backs and having ongoing fear, he “remained in doors for a long time” before deciding to resume his studies, namely the English course. He stated that he enrolled in the English course to better understand the Masters course. In oral evidence, the applicant stated that he was depressed following the death of his cousin. He said that he was recovering but relapsed after the Altona Beach attack. He confirmed that he never attended a doctor of psychologist for treatment.
The Tribunal asked if the applicant could provide supporting documentation to his claims. He said that he could provide a post mortem report, receipt for the payments he made and a copy of his statement made to police in relation to the attack at Altona Beach. The Tribunal requested that the applicant provide these documents by 9 August 2019.
On 8 August 2019, the applicant’s migration agent a number of documents to the Tribunal that included, inter alia:
·     Interim Cause of Death Report from NWS Health Pathology dated 24 November 2017 which made the following observations: “No macroscopic cause of death. Heart appears normal”. It confirmed that the body could be released.
·     A NSW Health Certificate of Transit dated 29 November 2017 in relation to Ibrahim Aamir Syed, confirming that no objection was raised to the transportation of the late Mr Syed to India taking place.
·     Letter dated 27 November 2017 from Rachel Akau’ola, director of St George & Sutherland Funeral Home, which certified the coffin for transportation to India contained the embalmed remains of Ibrahim Aamir Syed.
·     Letter dated 28 November 2017 from the Consulate General of India confirming consignment details of the deceased.
·     Coffin liner certificate dated 27 November 2017.
·     Certificate of Embalming dated 26 November 2017.
·     Death Certificate.
·     Grant of Probate.
·     Tax invoice dated 29 November 2017 from Sydney Family Funerals Pty Ltd in the sum of $10,570 for professional service fees and disbursements.
·     Confirmation of the applicant’s flights from Sydney to India on 29 November 2017 and return flight on 11 December 2017.
·     A statutory declaration dated 6 August 2019 signed by the applicant and witnessed by a member of the police force, which stated “I declare that on 8^th Jan, 2018 there was an assault happened [sic] to me near altona beach due to which I was in a shock and didn’t go to university. Incident date: 8/1/2018. Incident number: 180010243. Detective name: Mr Baskin. Police Station Area: Altona North.”
The Tribunal makes the observation that while the applicant provided the invoices from the funeral home and for his flights to and from India, there is no proof that the applicant himself had to pay these costs. However, there is no evidence that contradicts the sworn evidence given by the applicant at the hearing. In any event, it is obvious the death of his cousin meant unexpected and costly fees needed to be paid and whether it was the applicant himself who paid, or other family members, it represents a lot of money. The applicant confirmed that his family had paid the first year of tuition for the Master degree, which was approximately $25,000. The Tribunal accepts that the additional, and unexpected $14,000 in funeral costs would have presented difficulties for the applicant and his family.
The Tribunal accepts that the untimely and mysterious circumstances of the passing of the applicant’s cousin meant that his studies would have been disrupted. It accepts that when he returned to Australia to resume his studies, he could not afford to pay his tuition fees. The Tribunal also considers the (undiagnosed) depression that the applicant fell into is unsurprising and would also have impacted on his studies.
The second set back suffered by the applicant was the beach attack on Altona Beach on 8 January 2018. While there is no evidence that the applicant made a contemporaneous report to police about the incident, the applicant has signed a statutory declaration about it on 6 August 2019. The timing of the making of this statement does raise some concerns as it is not clear whether the applicant reported the matter to police at the time. However, from the additional information provided in the statutory declaration it appears that a detective has been assigned to the matter, which has been assigned an incident number. The Tribunal is willing to accept the oral evidence and statutory declaration about this incident and that the applicant suffered a mental set back as a result, with a relapse into depression.
After the death of his cousin and the Altona Beach attack, the applicant’s enrolment in the Masters course was cancelled. While the applicant did not give evidence about the affect this had on him after everything else that had occurred, it would no doubt have had a negative impact on his mental state. To his credit, the applicant did attempt to resume his studies, albeit in a general English language course. He stated that if the delegate’s decision cancelling his visa were to be set aside, he would return to Southern Cross University to resume his studies in the Master of International Tourism and Hotel Management course.
In light of the above circumstances, the Tribunal gives this weight in favour of not cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly some weight is given in favour of not cancelling the visa due to his general compliance with the conditions of his visa.
However, the applicant complied with the conditions of his visa for around one year before his enrolment was cancelled on 19 January 2018. When he enrolled in a new course 10 months later, it was in an English language course that is not included in the Australian Qualifications Framework, which meant he was still in breach of condition 8202. Accordingly, the Tribunal gives this some small weight in favour of cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said that he would feel very bad if he could not continue his studies. He and his family would suffer financial hardship as a result of the $25,000 they paid for the first year of the course that he has not completed. He said he wanted to complete the Masters course in order to get a good job. It follows that if he does not complete the course and achieves the Masters qualification, his job prospects will suffer.
The Tribunal accepts that the applicant will suffer some hardship if he has to return to India without completing the course of study he intended on completing and accordingly give this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight for cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. There is no evidence that the accused has any children in Australia (or elsewhere). Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Elizabeth Tueno
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9

[2019] AATA 4112

3 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal