Tariq (Migration)

[2020] AATA 855

Tariq (Migration) [2020] AATA 855 (15 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adeel Tariq

CASE NUMBER:  1924813

HOME AFFAIRS REFERENCE(S):          BCC2019/2357291

MEMBER:David Thompson

DATE:15 March 2020

PLACE OF DECISION:  Perth

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

Statement made on 15 March 2020 at 11:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – enrolled at lower level than visa requirement – poor course results and change of subject area – enrolment in lower-level vocational courses – discretion to cancel visa – factors for and against cancellation – intention to study at original level – enrolment in package of courses which will lead to that level – mental health – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cl 573.231, Schedule 8, condition 8516

CASE

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa, namely, condition 8516 which requires a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.116 of the Act, the Minister may cancel a visa if he or she 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). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

2. The applicant’s visa in this case was a Student (Temporary) (TU 573) visa. It was granted on 10 July 2014, and was subject to condition 8516. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

3. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

4. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The applicant having lodged his visa application on 3 June 2014, the relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/007.

5. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

6. The applicant was granted his visa on the basis of his enrolment in a Bachelor of Engineering (Civil) at Edith Cowan University, which was later varied to a Bachelor of Engineering (Civil) Honours. That course was to be preceded by a pathway course comprised of Diploma and Advanced Diploma level studies in Engineering. Those enrolments met the requirements for a Sub-class 573 Student visa, which requires enrolment in a Higher Education sector course. On 4 June 2019 the Department issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa pursuant to s.119 of the Act. The ground for possible cancellation given in the NOICC was that the applicant had ceased to be enrolled in a course within the Higher Education sector on 17 March 2015, when his enrolment in his Bachelor of Engineering (Civil) Honours course was cancelled.  The applicant, who was enrolled in a Diploma of Hospitality Management at the time, disputed that he was in non-compliance with his visa condition. However, the delegate found that the applicant’s Diploma of Hospitality Management course was a VET sector course, rather than a Higher Education sector course, and consequently found that the applicant was in breach of condition 8516.

7. At hearing before the Tribunal, the applicant was asked if he disputed the delegate’s finding of breach. He stated that he did not dispute it, and accepted that he had breached condition 8516. The applicant gave evidence as to the circumstances surrounding that breach, including evidence of his state of understanding and intentions at the time. That evidence will be considered below. The Tribunal finds that the facts of the applicant’s case relevant to the issue of whether the discretion to cancel the applicant’s visa are as determined by the delegate. Those facts clearly support the delegate’s conclusion, and the applicant’s concession in that regard was properly made.

8. 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 the visa should be cancelled.

Consideration of discretion

1. 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

1. The applicant gave evidence at hearing that his purpose in travelling to Australia was to undertake the studies for which he was then enrolled, namely, a package of courses consisting of a Diploma in Engineering – Technical and an Advanced Diploma of Engineering, and finally a Bachelor of Engineering at Edith Cowan University. The evidence before the Tribunal establishes that the applicant started on that course of study but changed to a package of related courses, namely, a Diploma of Civil Construction Design and an Advanced Diploma in Civil and Structural Engineering. That new package formed an alternative route to the Bachelor of Engineering. The applicant did not commence his Advanced Diploma in Civil and Structural Engineering, as he had transferred to a Certificate IV in Business before the commencement date. Nonetheless, the history of the applicant’s early enrolments shows efforts to reach his original goal of Bachelor of Engineering. The Tribunal is satisfied that his intention in coming to Australia was to study in the Higher Education sector, towards a Bachelor’s degree.

2. The applicant’s reasons for transferring out of the Higher Education sector into courses in the VET sector will be discussed below. After the applicant made that change, he continued to be enrolled consistently in courses in the VET sector. Such gaps as there were between his courses are of minor duration, such as might be expected between courses. This state of affairs persisted until 20 May 2018, by which date the applicant appears to have completed a significant part of a Certificate IV in Commercial Cookery. After that point, the applicant was not enrolled again until 14 March 2019, when he enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Perth College of Business and Technology.

3. The applicant’s CoE for each of those enrolments was cancelled following cancellation of his visa on 30 August 2019. The applicant gave evidence at hearing that once his visa was cancelled and he had lodged his review application with the Tribunal, he was issued a Bridging Visa E which carried no study rights. A print-out of a Visa Details Check obtained from the Department’s Visa Entitlement Verification Online system, and provided to the Tribunal by the applicant, indicates that his Bridging Visa E was issued on 27 November 2019. The applicant stated that it took some 11 weeks before he was able to recover his study rights, at which point he was able to re-enrol. There is evidence before the Tribunal, in the form of a letter of offer from Perth College of Business and Technology dated 14 October 2019 in respect of a package of hospitality courses, that he attempted to re-enrol earlier. The applicant has also supplied the Tribunal with CoEs for those courses (which will commence shortly) showing that he has made payments towards the tuition fee for the first course in the package. The applicant gave evidence at hearing that his ultimate intention is, and has always been, to enrol in a Bachelor’s level course in his new area of study. As evidence of this claim, the applicant provided the Tribunal with a page from a publication originating with CQ University regarding articulation agreements, showing that the courses in which he is currently enrolled could lead onto enrolment in a Bachelor of Hospitality Management course with that institution. The applicant has also provided evidence, in the form of a print-out of an email exchange dated 28 February 2020 to 2 March 2020 with the International Admissions Officer at CQ University, that he has applied to enrol at that institution. This documentary evidence provides only faint corroboration of the applicant’s claim at best, relating as it does to a time only days before the hearing of this review application. However, the applicant impressed the Tribunal as a witness of truth at hearing and the Tribunal accepts his evidence as to his ultimate intention, without making any finding as to whether this intention is likely to be, or indeed can be, realised.

4. On the basis of this evidence, and notwithstanding the gap in enrolment between 20 May 2018 and 14 March 2019 (to be discussed further below), the Tribunal finds that the applicant’s purpose in remaining in Australia since transferring into VET sector courses is to pursue his studies. The Tribunal gives this some weight in the applicant’s favour.

Circumstances in which the ground of cancellation arose

1. The breach of visa condition addressed by the Department in its NOICC dated 4 June 2019, and the basis for the delegate’s decision to cancel the applicant’s visa, initially took place when the applicant abandoned his engineering studies at TAFE, and with them his enrolment in the Bachelor of Engineering programme at Edith Cowan University. The applicant gave evidence at hearing that he made that change because he had failed almost every unit in his first engineering course (Diploma of Engineering – Technical) and had done only a little better in the course he took up instead of that initial course (Diploma of Civil Construction Design). The applicant provided the Tribunal with records of results for each course confirming this. The applicant stated at hearing that these experiences convinced him that he had no aptitude for engineering and needed to change to another path of study if he was to obtain Australian qualifications. The delegate stated that the applicant’s enrolment in the Bachelor of Engineering (Civil) Honours course was, according to the applicant’s records in the Provider Registration and International Student Management System (PRISMS) cancelled on 17 March 2015. That is not strictly correct. The PRISMS records consulted by the Tribunal show the date of cancellation of that enrolment as 2 March 2017, and give the cause of cancellation as “non-commencement of studies.” It might be argued that the applicant was not technically in breach until that date, although it is clear on the applicant’s own evidence that he abandoned his studies in the Higher Education sector considerably earlier. The applicant has provided the Tribunal with a copy of his record of results for his Diploma of Civil Construction Design, on his evidence at hearing the last engineering course he attempted. He has also provided the Tribunal with a copy of the statement of results for his Certificate IV in Business, the first non-engineering course he undertook. On the basis of those documents and on the basis of the applicant’s PRISMS record, the Tribunal finds that he left the Higher Education sector in substance in or about the end of July 2015.

2. The applicant stated that his non-compliance arose because no one – neither the staff at TAFE International Western Australia (where he started his studies in this country) nor the staff of any college in which he subsequently enrolled – informed him that he was in breach of his visa conditions by leaving the Higher Education sector. In essence, the applicant’s evidence and submission to the Tribunal was that his breach was unintentional, and that although he would not have pursued Engineering studies in any event, had he realised that he would breach his visa conditions he would have enrolled himself in a package of courses that included studies at a Bachelor’s degree level rather than treating such an enrolment as a step to be taken at a later date.

3. The applicant also gave evidence that in August 2018 his father suffered a serious road accident that rendered him unconscious and placed him in intensive care until 10 December 2018, on which date he was discharged from hospital. The applicant provided a medical certificate from Dr Abrar Saeed of the National Hospital, Chowk Nakhuda, Misri Shah, Lahore, containing that information. The applicant gave evidence that he suffered depression and stress as a result of his father’s accident which interfered with his studies. At hearing, he provided the Tribunal with copies of two medical certificates noting that he suffered from stress and depression. Following hearing, he provided a copy of a letter from a clinical psychologist confirming his attendance at a treatment session. Those documents related respectively to the periods 5 December 2017 to 29 January 2018, 28 February 2019 to 8 March 2019, and to the date 8 March 2019. The applicant also provided the Tribunal with a copy of a completed “intervention form” from Australian Technical College Western Australia, at which he was enrolled in a Certificate IV in Commercial Cookery, referring to missed classes in term 2 of 2018 and to medical certificates. It is clear on the face of that document that the college official sighted those certificates and accepted them, and also that they are not the certificates provided to the Tribunal. The applicant relies on the medical information discussed in the preceding paragraph as providing a reason beyond his control for breaching his visa condition.

4. At hearing, the Tribunal put it to the applicant that he was responsible for checking and understanding the conditions on his visa himself, and that it was not reasonable for him to rely completely on college staff to inform him of these matters. The applicant accepted that, but made reference to his medical condition as a further exculpatory matter. The Tribunal accepts the applicant’s evidence as to his father’s accident, and accepts the applicant’s evidence that he has suffered from, and continues to suffer from, stress and depression. However, the applicant’s documentary evidence does not support the submission that his stress and depression were the (or a) cause of his breach of visa condition – all of the documentary evidence mentioned above relates to periods considerably later. The Tribunal does, nonetheless, find that the applicant did not intend to breach his visa conditions. The Tribunal also finds that the applicant has suffered from stress and depression that was not caused by but was considerably exacerbated by his father’s accident, and that this condition contributed to the prolongation of the applicant’s breach by interfering both with his appreciation of his position, and with the course of his studies, such that he did not progress far enough in his studies to have re-entered the Higher Education sector by obtaining an enrolment at an appropriate level in his new study path by the time the Department issued its NOICC.

5. The Tribunal gives these circumstances some weight in the applicant’s favour.

The extent of compliance with visa conditions

1. The Tribunal notes that the Department issued a previous NOICC to the applicant on 4 March 2019, and that having considered the applicant’s response the delegate decided to refrain from cancelling his visa. These facts are apparent from the copy of the Department’s notice of decision not to cancel dated 1 April 2019, a copy of which the applicant provided to the Tribunal. The applicant has not provided the Tribunal with a copy of the earlier NOICC itself, and nor is a copy included in the Department’s file in relation to the current matter. However, the applicant has provided a copy of his registered migration agent’s response to the first NOICC. On the basis of that document it is clear that the first NOICC was sent on the basis of the period of non-enrolment mentioned at paragraph 17 above. The fact that the delegate decided not to cancel the applicant’s visa does not, of course, mean that the applicant did not breach his visa conditions. However, any such breach was concurrent with that under consideration in these reasons, and given the delegate’s conclusion the Tribunal declines to give that breach any weight in the current matter.

2. Otherwise, there is no evidence that the applicant has breached his visa conditions on any previous occasion. The Tribunal finds that this circumstance weighs in the applicant’s favour.

Degree of hardship that may be caused

1. The applicant gave evidence that his family has spent a considerable sum on his education in Australia, and that cancellation of his visa would result in those funds being wasted. The applicant estimated the sum to be in the region of AUD50,000. This does not seem improbable or overstated to the Tribunal, given the time the applicant has spent in Australia studying. The applicant also stated that cancellation of his visa would deprive him of the opportunities an Australian qualification would give him on his return to his home country. The Tribunal accepts that these factors constitutes hardships, albeit hardships that would ordinarily attend cancellation of a student visa for breach of a condition. The Tribunal gives these factors only a small amount of weight in the applicant’s favour.

1. More important in the Tribunal’s view is the probable effect of cancellation on the applicant’s mental condition. As has been stated above, the Tribunal accepts that the applicant has suffered from stress and depression for a large part of the time he has spent in Australia. On the evidence before the Tribunal, he would appear to have established a medical support network and to be undergoing treatment. On the evidence, he also appears to have reached the point where he is on track with a course of studies, albeit not the course he originally intended to pursue, which is capable of leading to a Bachelor’s degree. The Tribunal finds that cancellation of the applicant’s visa would most likely exacerbate his depression and deprive him of his treatment and support network, and that this is a real hardship the applicant would suffer. The Tribunal gives this hardship considerable weight in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. There is no evidence before the Tribunal suggesting that the applicant has been uncooperative, or acted in bad faith, in his dealings with the Department at any time. The Tribunal gives this circumstance some weight in the applicant’s favour.

Whether there would be consequential cancellations under s.140

1. The applicant gave evidence at hearing that he has no dependent family members whose visas would be cancelled as a result of cancellation of his visa. The Tribunal gives this factor no weight, neither for nor against the applicant.

Whether there are mandatory legal consequences

1. If the applicant’s visa is cancelled he may, if he does not leave Australia voluntarily, become liable to be detained pursuant to s.189 of the Act, and may become liable to being removed from Australia pursuant to s.198 of the Act.

2. Affirmation of the delegate’s decision would place a limitation under s.48 of the Act on the Australian visas which the applicant could be granted. The applicant may also be ineligible for a grant of a further temporary visa for a period of time by reason of Public Interest Criterion 4013.

3. However, these are the intended consequences of the legislation. Consequently, the Tribunal gives these factors only slight weight in the applicant’s favour.

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

1. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in a breach of any of Australia’s international obligations. The Tribunal gives this factor no weight, neither for nor against the applicant.

Any other relevant matters

1. No other relevant matter arises for consideration on the evidence before the Tribunal.

2. Considering the circumstances as a whole, which overall weigh in the applicant’s favour, the Tribunal concludes that the visa should not be cancelled

DECISION

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

David Thompson
Member