Tariq (Migration)

[2018] AATA 2212

Tariq (Migration) [2018] AATA 2212 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anmol Tariq

CASE NUMBER:  1802255

HOME AFFAIRS REFERENCE(S):           BCC2017/3230289 PNJ

MEMBER:Sean Baker

DATE:4 May 2018

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 04 May 2018 at 2:22pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether applicant failed to maintain enrolment in a registered course – Applicant not enrolled in a registered course – Whether the visa should be cancelled - Where applicant relied upon misleading advice – Applicant granted medical leave – Applicant resumed studies after leave – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 360(2)
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 November 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 the applicant was not enrolled in a registered course. 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. On the basis that the applicant was not properly notified of the decision I find that the applicant’s application for review is within time. See the reasons below.

4. Prior to the hearing the Tribunal received strong and helpful submissions as well as very helpful supporting evidence. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

6. 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

7. 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?

8. 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)

   …

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

10. It is common ground that the applicant did not have a CoE from February 2017 until February 2018 and it is conceded that the applicant failed to maintain his enrolment in accordance with condition 8202.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2).

12. However, I make the following findings, based on the clear documentary evidence before the Tribunal:

    ·The applicant sought medical treatment in February 2017, evidenced by a letter from his doctor dated 2 February 2017 (Tf.180);

    ·The applicant sought, and was granted deferral from La Trobe University on the basis of this medical reason, as evidenced by the copy of his leave of absence form (Tf. 180);

    ·This leave was approved, as evidenced by the email from the international student services coordinator as well as the most recent CoE notes (Tf.179 and Tf.191). I further accept that he was advised by the international student services coordinator, who is no longer at La Trobe, that his CoE would not be cancelled if the leave of absence was for less than or up to six months (Tf. 182);

    ·I accept that the applicant resumed studies in July 2017, after his leave of absence period, completing three subjects in second semester 2017, as evidenced by his payments for this semester to La Trobe and his La Trobe University Academic record (Tf.179-177);

    ·I accept that the applicant enrolled to continue his course on 20 February 2018 for first semester 2018, as evidenced by his CoE created 20 February 2018 for first semester 2018 (Tf. 191).

13. These documents were not before the Department.

14. Taking these findings into account, I have proceeded to consider whether the visa should be cancelled.

    Consideration of the discretion to cancel the visa

15. 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

16. The delegate found that the breach demonstrated that the applicant was no longer in Australia in accordance with the original purpose of his visa, to study. I am not convinced that this addresses the question posed by the policy, but in any event it is clear to me that this is not the case. On the findings above, I find that the applicant applied for and was granted leave of absence, and that he took the incorrect advice of an employee of his registered education provider to be correct and assumed he continued to be enrolled. He was then able to pay for and study courses at La Trobe despite him appearing not to have a valid enrolment, through, I find, no fault of his own. He has continued to study during the review of his cancellation decision. I find therefore that the applicant has demonstrated his purpose as being to study despite the difficult circumstances not of his own making. I give this factor some weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

17. As above, the applicant has not complied with condition 8202(2) for a considerable period of time. However, as above, I find that the applicant has compelling reasons for the breach – he sought leave of absence and was granted it by his provider, his CoE was cancelled without his knowledge and against the advice he had received from an employee of his provider, he studied and paid for that study despite not being enrolled. Whilst I find that the applicant did breach the condition, given the circumstances of the breach I give this no weight towards the visa being cancelled.

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

18. The applicant has described the difficult personal circumstances that led to him seeking a leave of absence, and since the cancellation. I accept that the cancellation has led to significant personal detriment. Given the circumstances above, I find that the continuation of the cancellation would compound this and give this some weight towards the visa not being cancelled.

    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

19. The circumstances that led to the cancellation of the applicant’s enrolment have been described above. The Department then proceeded to consider cancelling the applicant’s visa. The applicant did not appear to have updated his address details with either the Department or his provider. The Department proceeded to use an address the applicant had recorded on an incoming PAX card, but the Department mis-transcribed the address (and possibly the email address as well) – as evidenced by the copy of the PAX card at Tf.176, the Department file notes at Tf.17, and the views of several staff members of the Department (Tf. 58). Because of this error the applicant did not, I find, receive the NOICC or notification of the decision. This then led to several significant consequences – he was unable to explain that he had had a deferral and then promptly resumed studying, under the impression that he was still enrolled, he attempted to depart Australia under the understanding that he still held a valid visa, and he did not apply for review of the cancelation decision within time.

20. I find that the applicant was not properly notified of the decision to cancel his visa. The last address he had provided to the Department was the PAX card, but the address he has written was then mis-transcribed by the Department, meaning, I find, that he was not notified of the decision in accordance with the provisions of the Act, and there was no deemed notification. Actual notification, I find, did not occur until at least 21 January 2018, and the applicant lodged his application for review within time on 29 January 2018, within the seven working day time limit.

21. The applicant appears not to have informed his provider or the Department of his change of address promptly. However, this situation would not have arisen if his provider had given him better advice about the process he needed to go through in order to stay enrolled, and had alerted him to the fact he did not have a current CoE when he paid large sums of money to them to study in semester 2. The Department unfortunately mis-transcribed the applicant’s postal address. It is unfortunate that they did not check and transcribe the correct email address, which the applicant also recorded on the PAX card.

22. Through this series or errors, the applicant has had his student visa cancelled when he has behaved entirely appropriately as regards his study as far as I can see, and his only failing appears to have been not to have updated his address details promptly.

23. From the unambiguous evidence before me I can discern absolutely no attempt by the applicant to avoid study, mislead his provider or the Department or any other demonstration of bad faith on his part. I give this factor some weight towards the visa not being cancelled.

    past and present behaviour of the visa holder towards the department

24. The applicant has conducted himself, I find, in good faith in all of his dealings with the Department. I give this some weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s.140

25. 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

26. If the visa were to be cancelled the applicant would be excluded from making applications for certain types of visa, and would be unable to continue his studies. Given the circumstances as set out above this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled.

    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

27. As per the submissions, the applicant is not seeking to rely on this matter.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

28. Not relevant.

    any other relevant matters.

29. As above, it is clear that this matter involves a technical breach only, in that the breach does not reveal any bad faith on the part of the applicant. As above, it is clear that the considerations I have arrived at, on examining all the evidence before me, lean overwhelmingly towards the visa not being cancelled and I so find.

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

    DECISION

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

    Sean Baker
    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.