1419708 (Migration)

[2015] AATA 3815

1419708 (Migration) [2015] AATA 3815 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Waqas Azmat
Mrs Ramsha Waqas

CASE NUMBER:  1419708

DIBP REFERENCE(S):  BCC2014/2598341

MEMBER:David Corrigan

DATE:30 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 30 November 2015 at 1:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 November 2014 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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) as she was satisfied that the applicant had not complied with a condition of her visa (8516). 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 21 October 2015 to give evidence and present arguments.  The applicant’s uncle also gave oral evidence to the Tribunal.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal 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.

9. It was a criterion for grant of the applicant’s Subclass 573 visa that if cl.573.223(1A) does not apply that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231. 

10. Clause 573.223(1)(A) relevantly provides:

    (1A) If the applicant is 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:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

11. Eligible higher degree student is defined as clause 573.311 as follows:

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    (i)      a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;

    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

12. On 4 March 2013, the applicant was granted a Subclass 573 Higher Education Sector visa granted under the streamlined visa processing (SVP) visa scheme with condition 8516 attached and on the basis of being an eligible higher degree student due to enrolment in a Diploma of Information Technology (IT) at the Australian Technical and Management College (ATMC) and a Bachelor of IT at the University of Ballarat.  On 28 November 2013, his enrolment was cancelled by the University of Ballarat due to non-commencement of studies.  The applicant enrolled in a Bachelor of Business (Management) at Cambridge International College (CIC) which commenced on 24 March 2014; however his enrolment was cancelled on 28 July 2014 due to non-payment of fees.  In July 2014 he enrolled in a Diploma and Advanced Diploma of Management at Della.  The applicant was issued a Notice of Intention to Consider Cancellation (NOICC) of his visa on 10 October 2014

13. The evidence before the Tribunal shows that in July 2014 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework.  The evidence shows that during this period he was not enrolled (nor the subject of a current offer of enrolment) in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A. 

14. The requirement in condition 8516 is for 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.  Given, the applicant was not enrolled in a bachelor’s degree or master’s degree by coursework, he ceased to be an eligible higher degree student.  The applicant was not enrolled (or the subject of a current offer) in a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A,   Accordingly, he did not continue to satisfy subclauses 573.231 or 573.223(1A) and he thus failed to comply with condition 8516. 

15. 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 power to cancel the visa should be exercised.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia

17. The Tribunal is satisfied that the applicant travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

18. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

19. The Tribunal has taken into account that the applicant was in breach of condition 8516 from 28 July 2014 until it was cancelled on 26 November 2014 and considers that this is a substantial period of time that supports the cancellation of the visa. 

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

20. The applicant was enrolled in a Bachelor of Business (Management) from 24 March 2014 and ceased to be enrolled in this course on 28 July 2014.  He told the Tribunal that after a month of study he realised that the topics covered were similar to what he had studied as part of his Bachelor of Commerce in Pakistan and that his last day of studying was in April 2014.  The applicant then enrolled in a Diploma and Advanced Diploma of Management at Della and commenced studying on 28 August 2014.  He has claimed that it was always his intention after completing these courses that he would enrol in a Bachelor of IT once a place was available.  It is claimed that the applicant had repeatedly approached numerous educational providers since November 2013 and that despite his attempts he was unable to obtain enrolment, initially because no places were available and subsequently because the “no study” condition on his bridging visa.  The Tribunal is prepared to accept that the applicant telephoned and visited a number of course providers (including the University of Ballarat, the Royal Melbourne Institute of Technology (RMIT), North Melbourne Institute of Technology (NMIT)) when he returned to Australia in late November 2013 and that they all advised him that he could not obtain enrolment in any Bachelor of IT Semester 1 courses offered by them at such late notice as these courses were all full.  It all also accepts that such institutions would not offer him a place in such a course after his student visa was cancelled (on 26 November 2014).  However, it does not accept it is plausible or credible that the applicant was not able to obtain enrolment in a Bachelor of IT course at any SVP provider from mid-2014 onwards.  In making this finding, the Tribunal notes the statement in his agent’s submission and his evidence at the hearing that he has been orally advised by SVP institutions that he may enrol in a Bachelor of IT as soon as his visa enables him to.  

21. On the applicant’s evidence, he stopped studying the Bachelor of Business (Management) in April 2014.  He ceased to be enrolled in this course on 28 July 2014.  The Tribunal considers in all the circumstances that the applicant had an ample opportunity to enrol in a Bachelor of IT course and chose not to but instead enrolled in cheaper courses at the Vocational Education Training Sector level.  It does not consider his claim that he intended to enrol in a Bachelor of IT to be credible.  After considering all the evidence including his response to the NOICC, his agent’s written and oral submissions, his student visa statement and his evidence at the hearing, the Tribunal does not accept that the applicant has or had a genuine intention to study the higher education level for which the visa was granted.

22. The applicant did not contact the Department to ask for advice about the effect on his visa due to the change of courses.  The applicant had an obligation to be aware of his visa conditions and had been granted a Subclass 573 Higher Education Sector visa which is for the purposes of studying at that level.   It does not consider any of his claims in this regard to constitute extenuating circumstances beyond his control.  The applicant was granted the visa to study at the higher education level (under the SVP arrangements which require lesser evidentiary requirements) and did not do so and failed to maintain enrolment in any higher education course or even have a current offer. 

23. The Tribunal considers that there are not any extenuating circumstances beyond the applicant’s control that led to the breach of the condition.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

24. The Tribunal has taken into account that the applicant and his family members may need to return to Pakistan if the visa is cancelled.  The Tribunal accepts and has taken into account that the applicant has suffered some level of financial hardship as a result of his inability to work or study whilst awaiting the review of his review application.  It accepts that the applicant and his wife have been reliant on the wife’s casual work and she has given birth in September 2015 and has taken this into account.  At the hearing, the applicant told the Tribunal that if the visa was not cancelled he would seek to enrol in a Bachelor of IT course, however the Tribunal does not accept that he has a genuine intention to study at the higher education level.  Whilst it notes that he did not complete his Diploma of Management, it is not now his claimed intention to study at it.  Whilst he did not complete this course, the applicant has a Pakistani Bachelor of Commerce, which is a substantial qualification that would likely substantially increase his remuneration and employment prospects upon return to Pakistan.  He has also completed a Certificate III and a Diploma in Hospitality in Australia that he could also make use of.  The applicant told the Tribunal that there were lots of restaurants in Karachi and it would be financially difficult for him for him and his family to survive with him working in this field.  At the hearing, the applicant claimed that the planned coaching centre, he planned to open with his teacher father, (his uncle also gave evidence that the applicant and his father wanted to open up such a business) would suffer if he did not have a Bachelor of IT and that students would not come as a result.  The Tribunal finds this claim to be completely speculative and it does not accept that prospective students would fail to enrol at such a centre merely because the applicant did not have Australian Bachelor of IT qualifications and it does not accept that the applicant will not be able to open such a centre with his father in the future if they choose to do so.  Whilst the applicant may not obtain a high income if he utilises his qualifications in Certificate III and a Diploma in Hospitality, the Tribunal considers this is a further employment path available to him.

25. The applicants’ have claimed that due to problems with vaccinations in Pakistan, that there is a real chance that their child will be exposed to health risks if required to undertake his childhood immunisations in Pakistan rather than in accordance with the vaccination schedule in Australia.  The Tribunal has considered the country information submitted by the agent including reports that there is a high rate of counterfeit drugs in Pakistan, that some child deaths occurred after the administration of anti-measles vaccines, that polio is endemic in Pakistan, the deaths of four newborn babies in a private hospital due to doctor’s negligence and the arrest of fake doctors.  The applicant’s uncle gave evidence that he was advised to bring a baby back to Australia from Pakistan on doctor’s advice.  The Tribunal has considered this evidence of the uncle but it does not consider that its one off occurrence in a different case means that there is a real risk that the applicants’ child will not be able to access safe vaccination and health care in Pakistan.  The Tribunal accepts that there are problems with Pakistan’s health services and that there are some reports of poor medical practices, however the submitted reports need to be considered in the context that Pakistan has vaccination coverage of 54%[1] which indicates that vaccinations are widely available to Pakistani children and within the context of Pakistan’s large population of 191m.[2]  On the evidence before it viewed overall, the Tribunal is satisfied that the applicants’ child will have access to safe vaccination and medical care in Pakistan and the danger to his health is limited.  On the evidence before, it does not consider there is any real risk to the applicants’ child health due to the administration of vaccines or the general health situation in Pakistan.

    [1] Vaccination reminder band for Pakistani infants, 5 June 2015,

    [2] Pakistan, Department of Finance, Population, Labour Force and Employment,

26. The Tribunal considers on the evidence before it, the applicant and his family members will not suffer any significant degree of hardship (financial, psychological or emotional) if his visa is cancelled.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

27. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

28. The Tribunal accepts that the applicant wife’s visa has been automatically cancelled (or will be recorded as such by the Department) and has given this some weight; however it does not outweigh other factors that point to the cancellation of the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

29. As found above, the Tribunal does not consider there is any real risk to the applicants’ child health due to the administration of vaccines or the general health situation in Pakistan.   It finds that Australia would not be in breach of the Convention of the Rights of the Child (or any other relevant international agreement) due to the cancellation of the visa.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

30. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

31. The applicant told the Tribunal is the holder of a bridging visa and the agent advised that the applicant wife’s visa has not been cancelled.  Accordingly the applicant will not become an unlawful non-citizen as a direct result of the cancellation of the student visa and be liable to be detained and removed.  Whilst the applicant wife’s visa appears not to have been recorded as cancelled by the Department, it should be under s.140 by operation of law and the Tribunal accepts that the cancellation of the visa would mean that she was liable to be detained and removed as a direct result of the cancellation of the visa.  However, even if both are applicants are liable to be detained and removed, the Tribunal does not consider this factor (which it has given some weight to) outweighs other factors that point to the cancellation of the visa.

1. There are no provisions of the Act that that prevent the applicants from validly applying for a protection visa without the Minister personally intervening.  Nor is the Tribunal is satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because they cannot be removed from Australia consistently with Australia’s non-refoulement obligations.   

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

4. The Tribunal has no jurisdiction with respect to the second named applicant.

   David Corrigan
   Member