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Zulfiqar (Migration) [2020] AATA  1676  (3 May 2020)

Last Updated: 11 June 2020

Zulfiqar (Migration)  [2020] AATA 1676  (3 May 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Ahmed Umair Bin Zulfiqar

CASE NUMBER: 1714420

HOME AFFAIRS REFERENCE(S): BCC2017/1505291

MEMBER: Frank Russo

DATE: 3 May 2020

PLACE OF DECISION: Sydney

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 3 May 2020 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – medical condition, operations and ongoing difficulties – enrolment suspended then cancelled – attempts to re-enrol – subsequent enrolments cancelled – currently studying in different subject area – mental health – mother’s health – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 June 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 of study from 6 September 2016 until the date of the delegate’s decision on 29 May 2017. 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 is a 26-year-old national of Pakistan. Prior to the cancellation of his visa, the applicant was enrolled in the Bachelor of Engineering at the University of Wollongong.
4. The application was initially listed for hearing on 7 August 2019, but the date for hearing was postponed following a request from the applicant.
5. The application was listed for hearing on 24 September 2019. Following the non-appearance of the applicant at this hearing, the application was dismissed under s.362B(1A)(b) of the Migration Act. Following a request for reinstatement received on 10 October 2019, the application for review was reinstated.
6. The application was listed for hearing on 12 December 2020, but this date for hearing was postponed following a further request from the applicant.
7. The applicant appeared before the Tribunal on 17 January 2020 to give evidence and present arguments.
8. 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

9. 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.
10. In addition to his application form and a copies of the delegate’s decision and a Client Service Information document from the Department, the applicant provided the Tribunal with the following additional documents:
    1. Submission from the applicant to the Tribunal, dated 16 January 2020, which attached a number of documents, including some of the documents set out below;
    2. Medical notes relating to the applicant’s admission to Wollongong Hospital on 10 October 2015, including admission notes and discharge summary
    100. Documents created by Liaquat National Hospital from 14 to 16 December 2015, including medical note of visit, handwritten medical notes, discharge note and sales invoice from Department of Pharmacy Services
    4. Letter from Dr Syed Zafar of Bellambi Medical Centre to Dr Andrew Still, dated 23 November 2015
    5. Letter of Dr Syed Zafar, dated 2 June 2017;
    6. Letter from Saima Khan, Psychologist, dated 12 February 2020;
    7. Medical records relating to the applicant’s mother, including discharge summary for admission to South City Hospital, dated 5 April 2018, notes from Conawalla, Aga Khan University Hospital, dated 20 August 2019, Dr Rathore, dated 21 June 2019 and Dr Siddique, dated 4 February 2019, and record of MRI examination at South City Hospital, 6 April 2018;
    8. Medical certificates regarding the deaths of the applicant’s grandparents;
    9. Copy of email applicant sent to the University of Wollongong (UOW), dated 13 June 2017, forwarded to the Tribunal on 17 January 2020;
    10. ‘Statement of Purpose’ which the applicant provided to the University of Wollongong in his request for reconsideration of the decision to cancel his enrolment, undated, provided to the Tribunal on 5 July 2017;
    11. Copy of email applicant received from the University of Wollongong, dated 12 July 2017;
    50. ‘Statement of submission’ prepared by the applicant, undated;
    13. Applicant’s enrolment record for the Bachelor of Engineering at University of Wollongong;
    14. Student details for the applicant’s enrolment in the Bachelor of Professional Accounting at Holmes Institute;
    15. Computer screen shots showing the applicant’s enrolment in and results for units of study in the Bachelor of Professional Accounting at Holmes Institute in 2017 and 2018;
    16. Academic transcript for the Bachelor of Accounting at Universal Business School Sydney (UBSS), issued 18 August 2018;
    17. Confirmation of Enrolment (CoE) for the Graduate Diploma of Management (Learning) at Australian Institute of Business and Technology (AIBT) from 13 January 2020 to 8 January 2021, created on 20 December 2019;
11. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

Did the applicant comply with Condition 8202?

12. 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).
13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course after 6 September 2016 until the date of the delegate’s decision on 29 May 2017.
14. The applicant gave evidence at the hearing that he first arrived in Australia in October 2013 for the purpose of completing an ELICOS English course at UOW College, leading to a Bachelor of Engineering at UOW. The applicant stated that he completed the ELICOS course and commenced the Bachelor of Engineering in 2014.
15. He gave evidence of diagnosis of a pilonidal sinus in September 2015, which he explained was a cyst close to the base of his spinal cord. He gave evidence of two operations, one in Wollongong and one in Pakistan, and ongoing medical difficulties which he experienced into 2016, which resulted in his inability to attend classes and attend his final exams in semester 1 of 2016, details of which are set out in the Tribunal’s consideration of the circumstances which resulted in the breach, below. The applicant gave evidence that he was suspended by the University of Wollongong in September 2016 for a one-year period. The applicant gave evidence of an attempt to re-enrol in the Bachelor of Engineering in December 2016 for the February 2017 intake, but was told by the student centre at the university that he had to wait a further six months until his suspension had expired.
16. The applicant told the Tribunal that in May 2017 he received the notice of intention to consider cancellation (NOICC) of his visa from the Department, after which his visa was cancelled.
17. The applicant confirmed at the hearing that he accepts that he was not enrolled in a course of study from the date of his suspension by the University of Wollongong in September 2017 and, despite his attempts to re-enrol in his course of study, he was not enrolled again in a course of study until the date of the delegate’s decision.
18. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal (namely, that it demonstrated that he had not been enrolled from 6 September 2016 until the date of the delegate’s decision, and also that the records indicated he had enrolled in a number of courses, all of which have been cancelled, other than the one he was recently enrolled in prior to the hearing, which may be relevant to the exercise of the discretion). The Tribunal explained to the applicant the consequences of relying upon the information, namely that it may be the reason or part of the reason for the Tribunal affirming the decision under review. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.
19. The applicant chose to respond to the PRISMS enrolment record at the hearing.
20. According to his PRISMS enrolment record, the applicant has been enrolled in the following courses of study:
    1. English Language Programs from (8/4/2013 to 28/6/2013) – cancelled due to change to CoE/Student details;
    2. English Language Programs from (8/4/2013 to 28/6/2013) – cancelled on 19/9/2013 due to unsatisfactory course attendance;
    100. Bachelor of Engineering (29/7/2013 to 14/7/2013) – cancelled on 15/8/2013 due to non-commencement of studies;
    4. English Language Programs (30/9/13 to 20/12/2013) – cancelled on 4/4/2014 due to unsatisfactory attendance;
    5. Bachelor of Engineering (3/3/2014 to 31/12/2017) – cancelled on 17/9/2015 due to ‘Deferment/suspension – compassionate or compelling circumstances’;
    6. Bachelor of Engineering (29/2/2016 to 30/12/2018) – cancelled on 6/9/2016 due to unsatisfactory course progress;
    7. Bachelor of Accounting (28/8/2017 to 21/8/2020) – cancelled on 5/6/2018 due to non-payment of fees;
    8. Bachelor of Accounting (7/5/2018 to 11/12/2020) – cancelled because ‘Student notifies cessation of studies’;
    9. Bachelor of Professional Accounting (12/11/2018 to 31/7/2020) – cancelled on 22/8/2019 due to unsatisfactory course progress; and
    10. Graduate Diploma of Management (Learning) (13/1/2020 to 8/1/2021) – studying.
21. The applicant confirmed that the record relating to the Bachelor of Engineering was correct and that his enrolment was suspended from 6 September 2016 and that he was not enrolled again until the date of the delegate’s decision because of the one-year suspension from his course and his inability to be re-admitted to the course.
22. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 6 September 2016 to 29 May 2017. Accordingly, the applicant has not complied with condition 8202(2).

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 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

24. The applicant gave evidence that he first arrived in Australia after completing high school in Pakistan, and that he had no tertiary studies prior to arriving. He stated that he had no work experience, other than some part-time work to help out a few friends with their shops.
25. When questioned about the purpose for his travel to and stay in Australia, the applicant stated that he belongs to an educated family, that his father is a captain in the merchant navy and completed a Master degree in the UK. He stated that he also wanted to complete his education abroad, and that Australia is one of the leading countries in education. He stated that in particular, the University of Wollongong is known for its Engineering degree. He stated that he came to Australia to complete a degree in Engineering and enhance his knowledge, so he can then return to his home country and help the community.
26. The Tribunal questioned the applicant as to his plans if the visa were not cancelled. He stated that he would contact the university and would re-enrol. He stated that he would take extra classes.
27. When questioned which course he was referring to, he stated the course he is enrolled in now. He stated that he would try to complete it by the given time. He stated that he is happy to take more classes and show his progress to the Department, and to show that he is a genuine student. He stated that he ‘expects’ to be given a chance, and stated that there is otherwise nothing else ahead for him.
28. When questioned why he has now chosen to enrol in the Grad Diploma of Management (Learning), the applicant told the Tribunal that he has been living with friends in Wollongong, three of whom have been studying Business. He stated that he wanted to get admission into a Bachelor degree, but was unable to do so. He stated that he was lucky to get into this course. The applicant confirmed that before this he had been accepted into Bachelor of Accounting courses, but stated that accounting was not something he could perform, which is why he did not do well academically in these courses.
29. When questioned whether he was working, the applicant stated that he has worked on a casual basis every now and then. He stated that in the past few months he has not worked anywhere, though in the past he has worked in a fuel station as a customer representative and in a restaurant as a waiter. He stated that in 2014 he started casual shifts at the fuel station, but stopped when he experienced his problem. He stated that during his suspension from the University of Wollongong he did not work anywhere, due to his mental state. He stated that he was isolated and stayed at home and worried about his future. He stated that a year or two ago he commenced working in a restaurant at Shellharbour, but has not worked there for a few months. He stated that his parents have been supporting him.
30. The Tribunal raised concerns about the number of courses the applicant has enrolled in and the cancellation of all of them, other than his current course which he commenced the week before the hearing. The Tribunal raised concern that according to his PRISMS enrolment record, the applicant’s initial English Language Programs ELICOS course was cancelled twice due to unsatisfactory course attendance, prior to his enrolment in the Bachelor of Engineering. The applicant stated that he was not aware of this course attendance and he would need to check what had happened. The Tribunal questioned whether he received a certificate for completion of the English Language Programs, to which he responded that he completed his IELTS test and submitted it instead.
31. The Tribunal raised some concern that the applicant has changed his study pathway significantly, initially enrolling in a Bachelor of Engineering, subsequently enrolling in Bachelor of Accounting courses, and now in a Management program, and questioned whether the applicant is committed to his current study. The applicant responded that he has friends in Pakistan who have studied Business. He stated that he had interest in this area, but his father wanted him to enrol in Engineering. He stated that he thought he may go back to Pakistan and help his uncle in his sales marketing business. He stated that he has friends in Wollongong who are studying in the same field, that he has seen their notes and they have created interest for him in this course.
32. The Tribunal is satisfied that the applicant’s intended purpose for travelling to and remaining in Australia continues to be to pursue his studies. The Tribunal notes that the applicant enrolled in three Accounting courses after the cancellation of his Student visa, although he gave evidence that he was unable to succeed with Accounting, which is consistent with the cancellations of each of these enrolments. The Tribunal also accepts the applicant’s evidence about the limitations he has experienced in enrolling in additional courses due to his visa status. The Tribunal finds that, despite his inability to progress with his Accounting studies, his enrolments in these courses, as well as his current enrolment in the Graduate Diploma, are consistent with his evidence that his purpose for remaining in Australia is to complete his studies. There is no evidence before the Tribunal that the applicant has another purpose for remaining in Australia. Accordingly, the Tribunal gives this some weight against cancelling the visa.

The extent of compliance with visa conditions

33. The applicant was not enrolled in a course of study from 6 September 2016 until the Delegate’s decision on 29 May 2017, a period of over eight months, which is a significant period to be in breach of the enrolment condition. However, the applicant gave evidence of communications with the University of Wollongong in December 2016 about attempts to re-enrol in the Bachelor of Engineering, the evidence of which is set out below.
34. The applicant gave evidence that he complied with the other conditions of the Student visa, as well as the conditions of his Bridging visa. He stated that he has never worked more than 10 hours per week. There is no evidence before the Tribunal to suggest any other breaches by the applicant of his visa conditions. The Tribunal gives this matter some weight against cancelling the visa.

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

35. The applicant told the Tribunal that the cancellation of his enrolment and visa resulted in a family crisis as well as issues with his mental health. He stated that he was shocked when he did not obtain readmission to the University of Wollongong, after which he isolated himself. He stated that his morale dropped. He stated that after the cancellation of his visa, a friend of his took him to see a psychologist. He stated that he saw his psychologist for ‘a good few months’, though he had not been in the last few weeks.
36. He stated that if he does not get his visa, it will get him down again. He stated that there is nothing ahead for him and he has already wasted a lot of time. He stated that there would be no financial difficulty if the visa is cancelled.
37. He told the Tribunal that the cancellation of his visa affected his mother’s health. He stated that she became seriously ill and fell down and required an operation on her shoulder. He indicated that he believes his mother’s health depends on his success with his studies, and that she will have a lot of pressure if he is unable to finish his studies. He stated that her doctors have recommended ‘not to give her more tension’.
38. The Tribunal notes the multiple medical records the applicant has submitted in relation to his mother’s health conditions. While the Tribunal accepts the applicant’s evidence of the stress that his circumstances have brought to his mother, the Tribunal finds it difficult to assess the extent to which his mother’s medical conditions have resulted from the applicant’s circumstances or other factors.
39. The Tribunal also notes the letter of Ms Saima Khan, the applicant’s treating psychologist. The applicant provided this letter in response to an invitation from the Tribunal pursuant to s.359(2) of the Migration Act. The Tribunal notes that the letter does not contain the dates of consultations, as requested in its s.359(2) invitation, not does it specify the number of consultations or when they commenced. The Tribunal notes that the majority of the letter is of limited value, in that it recounts the applicant’s history as provided by the applicant to his psychologist, a history which the Tribunal is able to gain directly from the applicant. The letter does however indicate that the applicant is receiving treatment for depression and anxiety and outlines the ongoing treatment which he is receiving. The Tribunal accepts that the applicant has been receiving ongoing treatment for anxiety and depression.
40. The Tribunal is satisfied that the applicant would experience difficulty if the visa is cancelled, including his inability to complete a qualification in Australia, which remains his principal reason for remaining in Australia. In addition, the Tribunal is satisfied that the cancellation has resulted in difficulty for the applicant, including affecting his psychological health, as well as difficulties for his parents, who wish him to do well in his studies. The Tribunal gives this some weight against cancelling the visa.

Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

41. The applicant gave evidence at the hearing that he first arrived in Australia in October 2013 for the purpose of completing an ELICOS English course at UOW College, leading to a Bachelor of Engineering at the University of Wollongong. The applicant stated that he completed the ELICOS course and commenced the Bachelor of Engineering in 2014.
42. The applicant told the Tribunal that this had been the first time he had travelled abroad and left his family. He stated that he was born and raised in Pakistan and was raised by his grandparents as if they were his parents. He further explained that he grew up in a combined family system with his parents and grandparents, and that his grandfather always helped him with school. He told the Tribunal that after he arrived, his grandfather became sick. He stated that this was at the end of 2013 and he did not know the exact date. He stated that initially his family did not tell him about his grandfather’s condition, and that his grandfather passed away in first week of January in 2014. He stated that taking the news of this was hard for him and it affected his studies.
43. The applicant explained that at the end of 2014 his grandmother passed away as well. He stated that he was very attached to both grandparents and both of their deaths resulting in him feeling down.
44. The applicant told the Tribunal that in 2015 he started experiencing back pain. He stated that he consulted a doctor, but initially he thought the pain was the result of stress, or maybe the result of the mattress he was sleeping on.
45. The applicant stated that he first saw a general practitioner about his back pain around the end of August 2015 or in September 2015. He stated that he was diagnosed with pilonidal sinus, or a cyst at the end of his spinal cord. He stated that his general practitioner prescribed medications which made him drowsy.
46. The applicant stated that he had to go to hospital because the cyst was growing and it was painful for him to lie down. His general practitioner therefore recommended he see a specialist at Wollongong Hospital. The applicant stated that he was admitted to Wollongong Hospital in October 2015 and an operation was performed to remove the cyst. He stated that the area was not stitched, but left open, as the hospital staff believes it may have been an area containing multiple sinuses.
47. The applicant stated that after this he went to Wollongong Hospital every day for dressings, after which they referred him to a community health centre for daily dressings. He stated he could not remember the name of this centre, but stated it was in Wollongong, and he went there to have fresh surgical bandages applied.
48. The applicant told the Tribunal that the condition of his cyst got worse, rather than better, so his general practitioner recommended he see the surgeon who had performed the operation. The applicant stated that the surgeon discovered the issue was multiple sinuses and would take longer to heal than expected. He stated that his treating doctors recommended a further operation and that he return to Pakistan for it, as he would have family around to care for him following the operation.
49. The applicant stated that he returned to Pakistan in December 2015 for the purpose of the operation. He indicated that he had the same kind of operation as in Australia, and once again, the hospital did not stitch up his wound. He stated that every day a dresser came to his house to dress his wound.
50. The applicant told the Tribunal that his course recommenced in February 2016. He stated that he returned to Australia to start the semester, but because his wound was not healed up, and because of the long period of sitting required to travel to university and attend classes, he started to experience pain and the same symptoms as before. He stated that he went to see the same general practitioner who had initially diagnosed the pilonidal sinus, and that he applied more dressings.
51. The applicant stated that he started the semester, but missed his final exams for the semester.
52. The Tribunal questioned the applicant as to what communication he had with the university at this point. The applicant stated that he went to the student centre once, but he did not communicate anything. He told the Tribunal that this was because at the time he was ‘totally out of’ his mind and he was not sure what to do. He stated that he was visiting his doctor daily, who told him not to travel much, not to move or do anything. He stated that if he walked the wound would be stretched.
53. The applicant stated that the University of Wollongong suspended him for one year in September 2016. He stated that the wound was completely healed by December 2016. He stated that after this he went back to the student centre at the University of Wollongong and asked whether he could restart his course in the upcoming February 2017 intake. However, the representative in the student centre told him that he had been suspended from his course for 12 months, and would therefore need to come back after a further 6 months and re-apply.
54. The applicant stated that he was waiting for the opportunity to re-apply for his course of study. He stated that in the meantime he took classes from friends of his, so that he would be at the top of his studies when he returned to the university.
55. The applicant told the Tribunal that in May 2017 he received an email from the Department, sending him a notice of intention to consider cancellation (NOICC) of his Student visa. He stated that he told the Department everything which was going on, but the Department cancelled his visa.
56. The applicant stated that after his visa was cancelled he reapplied to the University of Wollongong for admission. He made a written application, but his request was denied. He stated that after this he wrote to the university and provided all of his medical certificates, but the university said it could not help him out.
57. The applicant stated that these events put him off track. He stated that he felt isolated. He told his mother what had happened and this caused tension with his family. He stated that as a result his mother became depressed and she became sick. He stated that his engagement was cancelled as a result of the cancellation. He stated that his mother wants him to complete his studies..
58. The applicant told the Tribunal that he tried to get into university during his one-year suspension, though with his Bridging visa Class E he was not able to obtain enrolments in many colleges. He stated that he is currently enrolled in a Graduate Diploma of Management (Learning). He stated that he really wants to complete this course. He stated that he was good student in Pakistan, and the Tribunal could check his high school results. He stated that he is fit for studies now.
59. When questioned as to the extent to which the circumstances outlined above were beyond his control, the applicant stated that his condition of pilonidal sinus and its effect on his ability to study effectively were beyond his control. He stated that he attempted to enrol again at the University of Wollongong, however his suspension from the university for one year affected his ability to do this.
60. The Tribunal questioned whether the applicant had provided the university with sufficient information regarding his condition, and noted that it did not have sufficient information regarding the applicant’s communications with the university. The applicant stated that he told the university about his health. He stated that the university agreed to allow him to continue with his studies, but the wound became affected again, which then resulted in the events which led to the cancellation. The Tribunal questioned whether the applicant had any copies of correspondence. The applicant stated that he communicated with the university through the university email system, which he no longer has access to. The Tribunal questioned whether he considered obtaining a second deferral of studies from the university or returning to Pakistan, if he was unable to study. He stated that he considered these actions, but he was concerned about the university’s email to him regarding his course progress, and this alarmed him that he needed to perform well.
61. The Tribunal notes the medical evidence of the applicant’s admission to Wollongong Hospital for surgery on 10 October 2015 regarding his pilonidal sinus, as well as the evidence of his admission to Liaquat National Hospital from 14-16 December 2015, which support the applicant’s claims as to the surgery he underwent on two occasions.
62. The Tribunal also notes in particular the letter of Dr Zafar, dated 2 June 2017, which was not available on the date the University of Wollongong made its decision to suspend the applicant’s enrolment, or at the date of the delegate’s decision. This letter confirms that the applicant had surgery for his pilonidal sinus in both Wollongong and Pakistan in 2015. It indicates that the applicant returned to Australia in February 2016, but due to the long travel and continuity of his studies, his wound became complicated and needed ongoing medical reviews, dressings and surgical reviews. The letter confirms that the applicant could not continue his studies from July 2016 until November 2016 due to his health issue. The Tribunal gives weight to this letter, given it is from the applicant’s treating general practitioner, who first diagnosed the applicant’s condition in 2015, referred him to a specialist, and continued to treat the applicant into 2017. The Tribunal is satisfied that it supports the applicant’s claims regarding the effect of his condition on his ability to study, as well as the regular re-dressing of the wound that was required.
63. The Tribunal has some concerns that it does not have a full picture regarding the University of Wollongong’s reasons for suspending the applicant’s enrolment in September 2016, particularly given the applicant’s poor results from his arrival in 2013, to his suspension in 2017. However, the Tribunal considers the letter of Dr Zafar of 2 June 2017 to be a crucial new piece of evidence that confirms the applicant’s health issues from July to November 2016, which affected his ability to study. Without this letter there is no medical evidence to confirm the applicant was unfit for study during the period when he was suspended from the university. The Tribunal therefore accepts that the applicant had a medical condition which affected his ability to study during the period when the University of Wollongong cancelled his enrolment.
64. The Tribunal accepts that once the University of Wollongong suspended the applicant’s studies for 12 months, there was little the applicant could do to mitigate the situation, other than enrol at another institution to avoid cancellation of his visa. The Tribunal overall found the applicant to be a candid witness, who answered questions without hesitation and gave evidence consistent with the documentary evidence. The Tribunal accepts the applicant’s evidence that he has approached the student centre at the University of Wollongong in December 2016 with a view to re-enrolling in 2017, but was told he had to wait a further six months before he could reapply.
65. The Tribunal considers that the applicant’s medical condition was beyond his control, and notes that he required two operations, followed by further ongoing treatment, despite which he experienced complications. While the Tribunal considers it does not have a complete picture as to whether the applicant acted sufficiently to inform the university, and then the Department, of the extent of his medical problem, given the lack of documentation of communication with the university prior to his suspension, given the applicant’s medical condition, the Tribunal is prepared to give the applicant the benefit of the doubt on this occasion. Given the extenuating circumstances beyond the applicant’s control, the Tribunal gives this factor some weight against cancelling the visa.

Past and present behaviour of the visa holder towards the Department

66. There is no evidence that the applicant has been uncooperative with the Department. He told the Tribunal at the hearing that he had told the Department everything regarding his condition, and the Tribunal is satisfied on the evidence before it that he has been cooperative. The Tribunal gives this some weight against cancelling the visa.

Whether there would be consequential cancellations under s.140

67. The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

68. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make. The Tribunal notes the circumstances under which the applicant’s enrolment was cancelled, in particular the new evidence regarding the extent of his medical condition and the effect this had on his ability to study. The Tribunal also notes the applicant has not yet obtained an Australian qualification, which was his reason for travelling to Australia, and remains his reason for remaining in Australia. Given the circumstances of this case, the Tribunal considers it would be unfair for the applicant to be precluded for three years from applying for a further Student visa to complete his studies. The Tribunal gives this some weight against 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

69. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa

Any other relevant matters

70. The applicant stated that there were no other relevant matters to be taken into account. The Tribunal, however, also notes the applicant’s enrolment history since his arrival in 2013. The applicant has enrolled in a number of courses of study, all of which have been cancelled, other than his current course, which he commenced the week before the hearing. The Tribunal is concerned that the applicant’s enrolment record in the over six years that he has been in Australia indicates he has made little academic progress. It also raises concerns for the Tribunal regarding the applicant’s ability to commit to his future studies.
71. The Tribunal does however note that there was no visa requirement that the applicant remain enrolled after his Student visa was cancelled in May 2017. Despite the visa cancellation, he enrolled in Accounting courses on three occasions, and now in his current Graduate Diploma. The Tribunal considers that the applicant’s persistence in enrolling in these courses is evidence of his desire to persist with his studies, despite his poor academic results for this period.
72. While the applicant has explanations for his poor performance in each of his courses, to meet the requirements of the Student visa, he will need to make progress in the completion of his course of study, and this responsibility lies solely with the applicant. The Tribunal notes that the hearing of this application was delayed by approximately five months as a result of the applicant’s non-appearance at a hearing and his requests to postpone two scheduled hearings due to medical reasons. He provided medical certificates in support of a complaint of back pain, which appears to be a separate medical condition to his sinus condition, which he claims was resolved by December 2017. Despite these delays, the applicant has assured the Tribunal that he is now fit for studies. If the applicant is unable to make progress with his studies in the future, he will need to consider how realistic his study plans are, and whether he should consider other options, including returning to his home country until he is in a position to study. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

Weighing of conditions as a whole

73. The Tribunal considers there is new medical evidence from the applicant’s treating doctor which supports the applicant’s claim that he was unable to study due to a medical condition at the time of his suspension from the University of Wollongong. This evidence was not available at the time the university suspended his enrolment, or at the date of the delegate’s decision. The Tribunal has therefore given the circumstances which resulted in the cancellation some weight against cancelling the visa. While the Tribunal has some concerns about the applicant’s ability to commit to a course of study and progress academically based on his enrolment record to date, given the circumstances of the cancellation and the applicant’s purpose for remaining in Australia, the Tribunal considers the applicant should be given one further opportunity to complete a course of study. The Tribunal notes it has given some weight in respect of several factors against cancelling the visa.
74. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Frank Russo
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.