1815677 (Migration)

[2019] AATA 4812

1815677 (Migration) [2019] AATA 4812 (10 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815677

MEMBER:Genevieve Cleary

DATE:10 June 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 10 June 2019 at 3:55pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – preliminary English course not completed – limited attempts at enrolment – possible separation from spouse – genuine student – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 15 May 2018 made by a delegate of the Minister for Home Affairs 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 had not maintained enrolment in a registered course and therefore breached a condition of his visa, enlivening the cancellation power under s. 116(1). The delegate considered that the factors in favour of a cancellation outweighed those against and cancelled 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. The applicant provided a copy of the delegate’s decision to the Tribunal.

3.The applicant supplied to the Department, and the Tribunal has had regard to, his response to the Notice of Intention to Consider Cancellation and the documents attached to that response, including electronic air tickets for a flight to Pakistan, intended to be taken by the applicant in May 2018.

4.The applicant appeared before the Tribunal on 15 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Ms A].

5.The applicant provided, on the hearing day:

·     Emails between himself, [University 1] and [his migration advisers] between January 2018 and July 2018 regarding enrolment at [University 1];

·     Information and a letter to the Department sent in response to the Notice of Intention to Consider Cancellation dated 20 March 2018;

·     Medical reports from a consultant psychiatrist in Karachi regarding his mother, who, from those certificates, appears to have been suffering from [a condition] for many years;

·     Documents sent to the delegate in March 2018;

·     A medical certificate dated 26 October 2017 with a prescription dated that same day;

·     Copies of the applicant’s passports: the front pages of an expired passport and a page showing his entry into Australia [in] April 2016 and the front pages of a current passport.

6.At the conclusion of the hearing, the Tribunal requested and subsequently received two further documents: a Statement of Attainment from [College 1] showing the applicant successfully completed 3 units of his course there, and a letter from that training organisation confirming his enrolment and the 3 units he completed.  The Tribunal notes that the letter, dated 6 February 2018, says that the applicant was enrolled until he requested cancellation of his enrolment.  The Tribunal also notes that by email to the Tribunal dated 15 April 2019 attaching the letter, the applicant disputes that he requested the cancellation, and says that his enrolment was cancelled due to non-attendance due to depression. 

7.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

8.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?

9.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).

10.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 10 July 2017 and 16 April 2018.

11.The letter dated 6 February 2018 from [College 1] states that the applicant was enrolled in the course [Subject 1 diploma] commencing 26 September 2016. Between that time and 10 July 2017 he completed three subjects and failed a further three subjects. The remaining [number] subjects were cancelled when his enrolment was cancelled on 10 July 2017.  The delegate’s decision outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant enrolled in courses of study on 16 April 2018:

·[an English course] and

·[a degree course]. 

12.Therefore, he was not enrolled in any courses of study between 10 July 2017 and 16 April 2018. In his response to the Department’s Notice of Intention to Consider Cancellation the applicant acknowledged he was not enrolled during that period. He also acknowledged he was not enrolled during that period in the hearing before the Tribunal. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2), and the ground for cancellation under s. 116(1) has been made out.

Consideration of the discretion to cancel the visa

13.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.’

14.At the hearing at the Tribunal the process of review was explained to the applicant. It was explained that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not to cancel the visa. I have carefully considered the response to the NOICC and the other documents provided to the Tribunal by the applicant and the applicant’s and his wife’s evidence at the hearing.

The purpose of the Visa holders travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

The circumstances in which the applicant came to Australia

15.The applicant arrived in Australia from Pakistan [in] April 2016. He was granted a TU573 higher education sector student visa on 18 April 2016 on the basis that he was enrolled in an [English Program] and a Bachelor [course]. The delegate noted in her Decision Record that he completed the [English] program but never commenced the Bachelor [course]. The applicant confirmed this at the hearing. 

16.Prior to arriving in Australia he had completed a Bachelor [degree] at the [named university]. He lived at home with his parents who paid for that course and supported him. His mother has been ill for many years with [a condition]. During his studies in Pakistan he worked as [an occupation 1], specifically as a [role]. Having worked in that area he believed he would make his career there. He finished his [degree] in [year], undertaking a diploma in [a subject] at the same time, completing that in [year range], he could not recall. Between 2014 and 2016 he worked in [a business] in Pakistan.

17.He decided that he wished to further his studies in [a subject] and enrolled in a [Bachelor] course at [University 2]. Although he had already completed some studies at a university in Pakistan he believed that the universities in Pakistan were generally very small and not as advanced as in other countries. He decided that he would be better served by studying in Australia. The course he enrolled in was to take approximately three years but before then he was to complete an English course.

18.Having carefully considered the applicant’s response and the other evidence before me, I accept that he initially came to Australia to study, and I give this some weight in his favour.

Changing courses

19.While the reasons the applicant changed courses and his attempts to remain enrolled in a registered course are relevant to the consideration of his compliance with visa conditions, in the applicant’s case they are also relevant to and to put in context his current circumstances and his purpose of stay in Australia. I have therefore considered them at this point.

20.The applicant did not complete the English course to the satisfaction of the University and he was asked to reenrol in that course. He felt that the requirement of doing the course again would set him back six months, and he did not reenrol.  He therefore could not commence the Bachelor course at [University 2].

21.As a result, he decided to try something else and enrolled in [Subject 1 diploma] at [College 1]. They did not require a further English test. He commenced [this diploma course], leading to a bachelors degree. He told the Tribunal that he decided to try [Subject 1] as opposed to [original subject] as a friend had suggested he do so. He was told that [Subject 1] is a large field and easy to gain employment in anywhere in the world, as opposed to [his original subject] which is an area in which one must be constantly creative.  It is also noted that that institution did not require another English program to be completed.

22.He enrolled to commence in the course in September 2016 however he only completed three units. He attended three subjects per week which took up approximately 2 to 3 days. This was considered a full-time load.  First semester finished in February 2017 and the second semester finished in May 2017. He told the Tribunal that it was his recollection that he had not completed any subject by then, however, the documentation provided after the hearing to the Tribunal shows that he, by that stage, had been credited with completing three subjects.

23.The third semester was to commence in June 2017, however he never commenced that semester. His recollection is that he stopped going to classes prior to the end of semester two.  After some meetings with [College 1], he says his enrolment was cancelled. From the letters provided to the Tribunal by the applicant, the cancellation occurred on 10 July 2017.

24.The applicant at first told the Tribunal in oral evidence that he started to make enquiries of other education institutions, such as [University 1], almost as soon as [College 1] cancelled his enrolment, although he does not have any paperwork to show for those enquiries.  He knew, he said, that notice of the cancellation would eventually get to the Department, and his visa would, potentially, be cancelled. However, later in the hearing he said that he had made enquiries at [College 1] first to see if they would have him back, and he went backwards and forwards with them for some months.  Later again in the hearing he said that he was too depressed to make any enquiries when [College 1] cancelled his enrolment, and hence did not make any enquiries of any institution until October or November 2017, however, again, he did not have any paperwork to show the Tribunal that he had made those enquiries. 

25.When the Tribunal pointed out to him that from the written evidence provided by him, it appeared that the first actual enquiries he had made were emails in early January 2018 between he and an agency, [his named migration advisers], he said he made the enquiries by telephone towards the end of 2017 to other educational institutions, however by November 2017 he realised that there was no point in making any enquiries, as it was almost the end of the year, and no one would be taking re-enrolments at that time, so he decided to wait until the new year. When it was pointed out to him that the emails he had supplied were enquires of an educational/migration agency, not an actual educational institution, he said that he had in fact not made enquiries of actual universities in 2017, only an educational/migration agency late in 2017, and hence the emails in early January 2018.

26.Even allowing for any language difficulties in the hearing, I found the chronology presented by the applicant as to his efforts to maintain his enrolment in a registered course confusing and inconsistent. When those inconsistencies were put to him, his answers did not explain the inconsistencies, but generally created more. That has lead me to take the view that from at least the time of cancellation by [College 1] to January 2018 the applicant was not genuinely attempting to resume and continue his studies. I therefore can give little weight to the efforts the applicant says he undertook to continue his studies after cancellation by [College 1] and before January 2018. 

27.The applicant says that he was suffering from depression during this time, and possibly before the cancellation.  I address that explanation below in these reasons.

28.The Tribunal accepts that there is evidence that by January 2018, and before the NOICC was sent, the applicant had a renewed vigour in his pursuit of study in Australia.  However, the applicant also assumed that by that stage the Department knew of the cancellation by [College 1], and he would have known that it was only a matter of time before he received communication from the Department cancelling his visa.  It is not clear whether he thought that a new enrolment meant that the visa could not be cancelled, or it would simply show his motivation for study, and convince them that despite the lack of enrolment since July 2017, he should nevertheless be allowed to remain. Either way, the Tribunal accepts that the correspondence shows he did attempt to re-enrol, from January 2018.

29.I address further, below, the lack of enrolment between the cancellation by [College 1] and his enquiries in January 2018 unexplained, however, in summary, I find that if the applicant was suffering from depression, it was not to the extent that it hindered him from continuing to study, or finding a new course or educational institution. Given his inability to previously maintain enrolment and successfully complete courses he was enrolled in, and the largely unexplained absence of enrolment or study between his cancellation by [College 1] and his documented attempts in January 2018 I do not accept that the contact with the agency in January 2018 and his ongoing attempt at enrolment from then was a genuine attempt to continue his studies. Rather, the contact with the agency and efforts at re-enrolment was in anticipation of the Department cancelling his visa.  I therefore give his efforts at re-enrolling from January 2018 little weight in his favour.

30.The fact that on 16 April 2018 the applicant received a Confirmation of Enrolment from [University 1] for the courses of General English and [a degree course] does not alter the Tribunal’s view of the lack of genuine attempt to study.  The applicant was not able to take up either course at the time they commenced because of the cancelled status of his visa, and, for the same reasons found in relation to his lack of enrolment, lack of effort to re-enrol and subsequent contact with the agency, the subsequent Confirmation of Enrolment in April 2018 does not illustrate a genuine attempt to continue his studies, but simply anticipation that the Department would soon cancel his visa.  I therefore give the Confirmation of Enrolment no weight in his favour.

The applicant’s current circumstances and plans for the future

The applicant’s courses of study and future employment

31.The applicant told the Tribunal that he hopes to complete the Bachelor of [Subject 1] and then return to Pakistan. He has friends who work in [this field] in Pakistan who are in good positions. He has made inquiries of two people, one being a neighbour in Pakistan. It was a conversation with that neighbour which led him to taking up the course in the first place and he has agreed to help him gain employment upon his return. The applicant agreed, however, that he has not thought further about what company he would work for in Pakistan. He does not have any family involved in [Subject 1].

32.The applicant’s initial enrolment was paid for by his family, however his subsequent enrolments were paid for by him.   He told the Tribunal that this came from work he had undertaken in Australia and money he had saved from working in Pakistan. When he came to Australia at first he lived with some Pakistani friends, one of whom is the son of family friends in Pakistan.  He told the Tribunal that because he was living with the son of a family friend there was no expectation that he would pay rent. His father also contributed to his travel and initial costs such as the application for his visa. His father sold his mother’s gold in 2015 or 2016 to fund the application. He sold some other personal effects as well. However, while the proceeds of those sales were deposited into the applicant’s bank account, the money was not spent and it was taken out of the account again. He feels this was by his father. He felt his father had lied to him.

33.However, he also felt that by being educated in a ‘first world country’ he would be looked up to when he returned to Pakistan, and that he would be letting his father down if his father knew he had struggled here.  For the same reasons, he felt he could not return to Pakistan without a qualification. 

34.He obtained employment approximately one month after arriving in Australia and thereafter paid his own way independent of his family.

35.The Tribunal accepts that the applicant may have a compelling need to remain in Australia to complete his education so as not to disappoint his family, to gain respect in his home country and increase his opportunity of employment there, and I regard this as affording him some weight in favour of not cancelling his visa.

36.I find, however, that the reasons for the applicant taking up a course in [Subject 1 diploma] may have had more to do with not having to complete a further English course to continue to study rather than a desire to work in that field, given it appears he has not thought of his prospects in that field beyond what his neighbour in Pakistan has told him.  Although he attempted to maintain his enrolment at an alternative education provider to [University 2] at that time, it suggests that the applicant simply had a desire to remain in Australia rather than to achieve an education in a particular area.  There is nothing untoward about changing one’s mind as to their course of study, however it appears that the change of course was more because the applicant did not want to complete the required English to the University’s satisfaction, rather than a genuine desire to qualify in the field. The Tribunal therefore must question the applicant’s genuine desire to study and gain a qualification over simply using the visa to maintain residence in Australia.  When combined with the Tribunal’s views of the applicant’s period of non-enrolment, and the Tribunal’s views of the applicant’s efforts to maintaining enrolment after July 2017, the Tribunal must give weight in favour of the visa being cancelled.

The applicant’s marriage  

37.In July 2018 the applicant met his wife on a dating site and they were married in November 2018. They live in a house which is in the name of his wife, however, the mortgage for which is being paid by his wife’s [relative]. His wife was born in Australia. The applicant is currently not contributing to the mortgage nor any of the expenses of the household. His wife is the recipient of New Start benefits and that money is used for upkeep of the house and general household bills. The applicant told the Tribunal that at one stage he received $1500 from his father. The money did not come direct to him but to the son of the family friend. He believes this was because he was in the process of applying for a ‘work rights’ visa and that if there was evidence that money had been deposited in his bank account then it would be assumed that he did not have to work.  Other friends have assisted him with money and with the purchase of food.

38.Now that the applicant is married to an Australian, he may have a compelling need to remain in Australia above his need to become qualified in a field of study so that he can return to Pakistan and gain employment and respect there. There are a number of factors the Tribunal must consider in relation to this marriage in its considerations of whether the visa should be cancelled, and they are discussed, and weight is attributed to them, later in these reasons.

Circumstances in which the ground of cancellation arose

The applicant’s depression

39.The applicant says that it was his depression which lead to his non-enrolment.  He describes feelings of disconnect at [University 2], soon after he arrived in Australia, although he did not understand what they were at the time.  He saw a counsellor, perhaps twice.  He was told he was in shock.  When asked, he told the Tribunal that it was his desire to continue counselling.  When asked if he did so, he responded that he did attend once more, but when pressed, he told the Tribunal that he was called by the University counsellor and returned at their suggestion on that occasion. 

40.The University counsellor suggested 3-4 exercises, which he did, but he could not recall what they were at the hearing other than one, which he says he did.  Because he failed English, he says his symptoms got worse.  I note that, in fact, the documents provided by him do not show that he failed English – he simply did not achieve the requisite standard for the University course in which he was enrolled. He says the expectations on him, being the only son, caused additional depression for him.  He was worried about his mother’s illness, and believed that his father was not telling him the truth about the state of his mother.

41.Again the Tribunal asked him whether he sought further counselling while he was still at [University 2], or shortly after he found out about his English, given his answer previously that he had wanted to continue with counselling.  He told the Tribunal that he did not seek any medical attention at this time as his overseas health cover did not cover psychiatry, and he did not think of going to a GP.  The Tribunal does not accept that explanation.  The applicant did not give any explanation as to why he did not return to the counsellor at [University 2] and ask for further assistance.   The applicant told the Tribunal about his mother’s symptoms and his life with her; he has seen first hand, through his mother, the debilitating effects of mental illness.  The fact that the applicant did not see fit to pursue counselling, or attend a doctor, even a general practitioner, suggests that in fact his symptoms were minor, if they existed at all, and did not require attention. He also said that he did not think [College 1] had a campus doctor, although of course he did not attend [College 1] until September 2016, some months after his initial attendances at the counsellor at [University 2], and therefore not relevant to the time he failed English. 

42.In relation to his concerns about his mother, he did not travel home to see for himself how his mother was, or to assist in her care.

43.As has been described above, the applicant did not wish to re-enrol in the required English course at [University 2] and he decided to try another educational institution, [College 1], commencing in September 2016.  The applicant told the Tribunal that it was the desire not to do another English course which compelled him to change courses and institutions, although later in the hearing, as described above, he also said it was because his neighbour suggested he do that course, although I accept that the two reasons are not necessarily mutually exclusive.  He was not sure whether what may have been the commencement of depression caused him not to complete satisfactorily the English course, or whether it was the failure to complete the English course which really brought on his depression.  In any event he commenced study at [College 1].

44.Towards the end of second semester in 2017, in approximately March or April, he says he stopped studying.  He became aware that his mother was very ill, and had attempted to run away.  She was not eating, had delusions and aggression and was creating anger in the family. The applicant spoke of how he had, when he was younger, been the one in the family to deal with such situations.  He and his mother had been close; he felt she had been different with him.  The applicant felt that his concern over his mother’s apparent escalation in her symptoms, and how his family were handling the situation added to his depression and feelings of distraction.

45.However he accepts that he did not take the opportunity to return to Pakistan to see her when he heard that she was very ill and causing problems in the family, or when he became ill. At the forefront of his decision, he said, was that he did not want to tell his father that he too was depressed.   He was also concerned that he had been lying to his father about his progress, and his father had been lying to him about his mother’s illness.  He was worried about the family dynamics should he return home in a situation where no one was telling the truth to each other.  The Tribunal accepts that that applicant had concerns over his mother’s welfare, and that that concern may have contributed to his own feelings, however, as the Tribunal has determined below, his level of depression was not such that it caused an inability to study, or to seek help, or to attempt to defer his course or engage with the Department.

46.He did not defer his studies, and eventually [College 1] cancelled his enrolment.  The applicant told the Tribunal that between approximately May and September of 2017 he was so depressed that he lay in bed for most of the time. He could not work.

47.A further reason for his depression, according to the applicant, is that he has not travelled back to Pakistan since coming to Australia. He told the Tribunal that his family has begun to ask questions as to how long his course will take and why it is taking longer than he originally thought. He has told them that he changed courses but that everything is fine and he is simply at a different university. It is noted that the Tribunal were provided with a booking for him to return for a short time to Pakistan at the time the Department was considering his cancellation in April 2018. He believed that once he explained to the Department the reasons for his non-enrolment, and gave them evidence of his desire to re-commence his studies by showing them the emails with the education agency and [University 1] and his attempts to complete another English qualification, he would retain his visa, and then he would be allowed to leave Australia and return. His desire in travelling was to show his family that he was finally doing well in Australia.  As his bridging visa does not allow travel, he cancelled those flights.

48.Despite his enrolment being cancelled because of his depression at [College 1] in July 2017, and his previous feelings regarding his family and failure at [University 2], the applicant did not seek medical attention until October 2017. He says he had suicidal thoughts, and he hoped the doctor would ask questions as a psychiatrist would. Instead, he only prescribed an anti- depressant, which he did not take.  He said his mother had taken many medications, and she was mentally ill.  It was not clear whether he was concerned that the medication would make him mentally ill like his mother, or whether his mother was an example of how medication does not assist. He also said he was concerned that it would stigmatise him in Pakistan if he commenced taking medication, although it was not clear to the Tribunal how anyone would find out in Pakistan that he was taking medication in Australia.  He also told the Tribunal that the doctor told him it would change his brain chemistry. The certificate provided to the Tribunal only says that the applicant is under medical care, and does not say what for, or for how long, or for how long the applicant has needed care.  There is nothing else before the Tribunal to substantiate the applicant’s claims.

49.The applicant did not seek any further medical help.  He told the Tribunal he read books about self-healing, and slowly recovered under his own hand.

50.The Tribunal found it difficult to accept the applicant’s evidence of depression, and depression to such an extent that it caused him to fail to complete at least his initial [Subject 1] course, if not the initial English course at [University 2], and hindered any reenrolment.  Despite him feeling disconnected as early as mid-2016, he saw a counsellor only twice, one of those times because he was called by the counsellor for a follow-up visit.  Then, on his evidence, despite his symptoms becoming worse because of his failing to complete his courses, disappointing his father and worrying about his mother, he did not seek medical attention until October 2017, refusing to take the medication prescribed to him and not following up any further.  The applicant provided no evidence to the Tribunal that there was any suggestion that his father or other family, or anyone else, would find out that he had sought medical attention in Australia – any suggestion by the applicant that the fact of his depression would stigmatise him in Pakistan has no basis, when there is no suggestion that anyone would find out.  His explanation that he would not take the medication because of his mother was also difficult to understand. 

51.While the Tribunal accepts that there is no requirement for anyone to take medication to assist in the recovery of a mental illness, and that it may be that self-guided recovery, as the applicant suggested he has undertaken, may be an adequate process for some people, the lack of medical or counselling attention, and the lack of professionally documented evidence of the long-term illness the applicant says he had been suffering such that he has been unable to successfully maintain or complete, essentially, any study other than his English course since he arrived in Australia in 2016, at least until he made concerted efforts again in 2018 to reenrol, suggests to the Tribunal that the depression was not such that it caused the applicant not to be able to successfully maintain his studies.  It would appear that in fact he has simply struggled academically and particularly in English, and is afraid that that will bring shame to him from his family. 

52.The applicant was aware that his visa was under threat. He told the Tribunal that [College 1] told him that they were going to cancel his enrolment towards the end of semester 2 in 2017. It is the view of the Tribunal that if the cause of his failing to complete his courses was truly from depression, he would have taken steps to either gain some assistance with the symptoms or underlying cause at the time [College 1] were considering cancelling his enrolment, or advise [College 1] or the Department that he wished to defer.  When questioned as to why he did none of those, he said that he felt that [College 1] did not give him a choice of deferment, and that he knew they would advise the Department of the cancellation.  The applicant said that he did not tell the Department that his enrolment had been cancelled because he thought that he could simply be enrolled back within it or elsewhere and continue without too much of a gap. He did not have anyone to assist him in telling him how it worked.He said that no one told him to hire a lawyer and in any event he could not afford to pay one.

53.The Tribunal does not accept that explanation. The acceptance of the cancellation by [College 1] and his failure to contact the Department in that situation suggests that the applicant had no real desire to actually maintain his enrolment, deferred or otherwise.  The applicant showed no real initiative, in what he says he did, in ensuring he continued to fulfil his obligations under his visa.  Given his lack of completion of many of the subjects he undertook, it appears more likely that the applicant was also struggling, as has been addressed above, because of his English, and did not have a desire to pursue the course.

54.The applicant also told the Tribunal that he was afraid that if he contacted the Department then they would take steps straightaway to cancel his visa. He accepted that that was the wrong approach.  The Tribunal has considered the possibility that the applicant’s depression was the cause of his lack of initiative in maintaining any enrolment or engaging with the Department at the time [College 1] were considering cancelling his enrolment, however given the finding of the Tribunal rejecting the applicant’s evidence that he suffered depression of a level that would hinder or stop him from so acting, the Tribunal cannot find that his depression was the cause of him failing to rectify the situation.

55.While the Tribunal accepts that the applicant has most likely suffered from some form of depression, most likely as a result of his moving to Australia, his struggling academically and worry over his mother, the Tribunal cannot be satisfied that the depression was so serious that it hindered the applicant in completing his courses, maintaining his enrolment or engaging with [College 1], or any other education institution or agency, or the Department. 

56.Therefore, the Tribunal does not accept the applicant’s claimed reasons for not completing satisfactorily the first English course he undertook, the change in University and course and the cessation of his studies prior to the completion of the second semester of the course at [College 1].  More importantly, I do not accept his reasons for not gaining reenrolment shortly after his enrolment at [College 1] was cancelled.  I find that the applicant has not fully explained his behaviour in stopping studying in the second semester of the [College 1] course and failing to maintain his enrolment at any institution in 2017 and I give this significant weight towards the visa being cancelled.

57.Having carefully considered all of the information before me, including the reasons for the lengthy period of non-enrolment, I consider the breach of condition 8202(2) here is significant, having been for a long period.  For the reasons above, I do not accept the explanations given.  I therefore give the lengthy breach of condition 8202 significant weight towards the visa being cancelled.

The extent of compliance with visa conditions

58.The applicant told the Tribunal that he has not applied for any other visas either in Australia or for entry elsewhere.

59.The applicant also told the Tribunal that he has worked while in Australia and has worked between 20 to 25 hours per week, varying each week. He acknowledged that his visa allowed him only to work 40 hours per fortnight, however, the Tribunal takes the view that some adjustments can be made for varying work hours per week and does not put any weight on the fact that the applicant may have worked slightly over the allowed number of hours per week or fortnight from time to time. The applicant says that he has not worked since his visa was cancelled.  His compliance in relation to those conditions is in his favour, however they do not outweigh in any way his failure to remain enrolled.

60.As has been discussed above, the lack of compliance with condition 8202 is substantial.  For the reasons set out above, the Tribunal does not accept the explanations provided by the applicant as to why he was in breach, and why it was for so long.  In the circumstances of this case, that failure to comply weighs heavily in favour of cancellation.

Past and present behaviour of the visa holder towards the Department

61.According to the Decision Record of the Department there was no evidence that the applicant had been uncooperative towards the Department. As the applicant pointed out in the hearing before the Tribunal, he provided a large amount of documentation to the Department in answer to the NOICC – the applicant felt that this meant that he had been positively helpful towards them.  I give this some little weight in his favour. 

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

The applicant’s family in Pakistan

62.The applicant has [specified family members] in Pakistan. [One sibling] is [age] years old and has a [qualification]. [They do] not work and it appears that [they have] undertaken caring duties for their mother.

63.His father is an [occupation] and is also ill. He has [medical conditions]. The applicant told the Tribunal initially that his father is not working, however, later in the hearing he said that he [works] for [a] company which belongs to the applicant’s father’s brother. All of the applicant’s family live in Pakistan.  There was no evidence before the Tribunal that the applicant is expected to return to support his family or take on a caring role with them.

64.The applicant’s family are aware that he is married. None of his family travelled to Australia to witness the marriage, the applicant said because of their financial and health problems. It does not appear that his family rely on him in any way or that he relies on them, whether he completes his course or not.  The Tribunal accepts that the applicant will suffer embarrassment if his visa remains cancelled, however, the Tribunal considers that this is a minor consequence for him, given there is no evidence of reliance on him by his family in Pakistan, and the Tribunal cannot give such a hardship any weight in his favour.

The applicant’s family in Australia

65.The applicant told the Tribunal that his wife had quite serious mental health problems and she confirmed this in her evidence. She is the recipient of New Start allowance, with a partial disability payment, as a result. She also has [an age] year old son. The applicant told the Tribunal that the son was taken from his mother prior to the applicant meeting and marrying her. The applicant’s wife confirmed that that was the case and that she is currently taking steps through family mediation to have the child stay with her one night per week. The son is currently living full-time with his father. The applicant told the Tribunal that prior to them meeting his wife also had a substance use problem but because of his guidance and assistance he did not believe she still had that problem.

66.The Tribunal asked the applicant what will happen either once he has completed his degree, or should his visa remain cancelled.  At first he said he will return to Pakistan.  The Tribunal explored with the applicant how that would work given he now has an Australian wife with a son, from whom she has been separated, and may at least in the future have some parental rights over.  The applicant said that he felt that his wife would do well to go to Pakistan with him, as it would enable her to be removed from her previous life in which she took drugs.  He said that he has helped her stay away from drugs, and has assisted her in detoxifying.  He said he has done this by using the strategies he employed to heal himself of his depression. He said they had not discussed their future together in any great depth, however he felt she would agree to travel with him, and then she would travel back to Australia from time to time to visit her son. He said that if she had shared control over her son, and if, for instance, the son stayed with her 50% of the time, his wife could return to Australia when required to fulfil that requirement.  He said that he could find a job, she would be away from drugs and they would be happy in Pakistan.  Given the circumstances, the Tribunal finds that such a suggestion is financially and practically unrealistic, and suggests that the applicant has not truly given any thought to the temporary nature of a study visa. 

67.Later, when discussing the possible orders a court may make in relation to his step-son, the applicant said that if the court did not order that [Ms A’s] son live full time with her, he would apply for a partner visa.  The Tribunal finds that the applicant’s evidence in relation to his plans with his wife and her son, and their future life, was inconsistent and changeable.  It was difficult to discern from the applicant what his true plans were in relation to his wife and step son, and therefore what the hardship would be, if any, to him if his visa was cancelled.  He seemed to be of the view that a suitable solution was achievable to the satisfaction of all.

68.When [Ms A] gave evidence, the Tribunal asked her the same questions.  [Ms A] became visibly upset when discussing the possibility of a future without the applicant and she told the Tribunal that she was unsure how that would practically effect her. She confirmed that her priority was to gain whatever contact she could with her son and that she hoped that would in the near future involve him staying with her at least once a week. That hope appears to be inconsistent with [Ms A] travelling to Pakistan to live with the applicant, whether that be after the applicant has completed his studies or before then.

69.The Tribunal accepts that [Ms A’s] reliance on the applicant in day to day life for practical and emotional support was genuine. She told the Tribunal that the thought of the applicant returning to Pakistan was traumatic for her. She explained that he takes her grocery shopping, to the doctor and the other appointments and takes her on walks and to other places. She said that the thought of him leaving her is distressing to her. She would consider going with him to Pakistan to live however as she pointed out, she has a son and she did not want to miss out on his childhood.

70.The Tribunal asked whether she and the applicant had discussed applying for a partner visa. She said that they had and that it was an option for them, however, for her the past 12 months had been hectic and that she was currently involved in a civil property dispute so she has not had much time to think about making applications for particular visas. She agreed that her [relative] pays the mortgage for her but also agreed that he is very old and unwell. She feels that if he dies she will not be able to keep up the payments on the house and she will most likely have to sell the house she and the applicant are living in.

71.[Ms A] has a [qualification] with a focus on [a subject area], however, she also has been assessed as having a partial disability due to mental illness and last worked in 2014. She confirmed that her New Start allowance pays the bills and only once has the applicant received money from his family.

72.The hardship to the applicant should his visa remain cancelled, as has been expressed, was difficult to assess, given the applicant’s evidence was that he would simply return to Pakistan with his wife and she could return to Australia as required. In some ways, the applicant may not suffer any hardship – he envisages under some circumstances applying for a partner visa, or taking his wife back to Pakistan. The Tribunal does accept, however, that cancelation will inevitably cause the family to have to make certain decisions which may cause disruption and conflict to the family unit.  I therefore accord some weight in favour of the visa not being cancelled to the hardship he and his wife would suffer.

73.The applicant made it clear on several occasions that education was all he had to mark himself as different to those he would be competing with in Pakistan. The Tribunal accepts that that is the case. The Tribunal also accepts that his family will feel let down and disappointed if he returns without further education and qualifications from Australia.  I have had regard to the feelings of regret and disappointment the applicant says he would have and bring to his family if he does not complete his studies here; I do not consider them as specific hardships, and I therefore accord them no weight under this consideration.  There is otherwise no evidence of any particular hardship to his family in Pakistan, should his visa remain cancelled.

74.The greater hardship will be to [Ms A], as it will be she who will have to make the decisions about her life and that of her son’s, should the visa remain cancelled. The Tribunal acknowledges the hardship [Ms A] will suffer if the applicant must return to Pakistan. 

75.The Tribunal also accepts that the applicant has and may continue to suffer from some level of depression and that a cancellation may contribute to the pressure and stress he may already be facing. However, the Tribunal is mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  The Tribunal has also found that the applicant does not have an adequate explanation for the cancellation of his enrolment, and his failure to re-enrol before cancelation of his visa; the level of depression he may have been suffering from time to time was not such as to stop him from taking steps to ensure compliance with the visa conditions.  Whilst appreciating the hardship to the applicant and, particularly, [Ms A], it does not outweigh the breach.

Whether there would be consequential cancellations under s.140

76.This is not relevant to the applicant.

If breach relates to a breach of r.2.43(1)(la) by a subclass 457 visa holder – mitigating, compassionate and compelling factors

77.This is not relevant to the applicant.

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

78.If the visa is cancelled, the applicant would need to obtain migration advice attaining to his status and potentially to make an application pursuant to his partner. Given the applicant indicated that if the visa remained cancelled he would return to Pakistan, there is no indication he would become unlawful or be subject to detention and I give this factor no weight.

79.Should the cancellation remain, the applicant may be time barred from making an application for any future student visa.  I acknowledge, as has been referred to elsewhere in these reasons, the applicant’s assertions that an Australian education would be a valuable asset to him in Pakistan.  I have had regard to that consideration, however, given the Tribunal’s findings that the applicant was more concerned with staying in Australia to live than obtaining an Australian education which would further his chosen career prospects in Pakistan, I give this consideration no weight in his favour.

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

80.When asked, the applicant indicated there was no reason he cannot return to Pakistan and he has not made any claims which would relate to this consideration. The Tribunal places no wait on this in favour of the applicant.

81.Given the applicant’s wife has a child, I have considered whether the best interests of that child are affected by any decision this Tribunal makes.  There was no evidence put before the Tribunal that suggests that the applicant has any relationship with the child, the child having lived with his father for some years, and [Ms A] having currently only limited contact with him. 

82.Affirming the cancellation will not, I find, have any effect on a positive relationship between the child and the applicant.  It may, however, effect the relationship between the child and [Ms A].  That a child has access to both parents is, generally, in its best interests, however, other than [Ms A’s] evidence that she has little contact with her son, and that he lives with his father because of her past mental health issues and drug abuse, I do not have any substantial information which allows me to make any further comment on the situation between [Ms A] and the father of her child and their care of their son, or what the best interests of her son would actually be, now or in the future.

83.While the best interests of a child is a primary consideration, I do not consider that a cancellation of the applicant’s student visa breaches such a primary consideration in this case.  No further evidence or submission was put before the Tribunal that a cancellation would have any effect on the child’s best interests.  The applicant is not, and does not appear to stand in for in any way, the father of the child.  The factor that is concerning is the fact that the applicant’s wife may have to choose her path should the applicant have to leave Australia.  However, as I have said above, the applicant seemed confident that arrangements could be made for that to occur to everyone’s satisfaction.

Any other relevant matters

84.At the hearing and in emails to the Department the applicant has stressed that his re-enrolment was delayed in 2018 because of a delay in receiving his PTE results.  He seemed to think that the delay in gaining those results was something the delegate held against him, and felt that the delegate had thought it was somehow within the applicant’s control that his results did not come in a timely manner, such that [University 1] denied his enrolment.

85.The Tribunal accepts that that delay in the English results in early 2018 was not due to the conduct of the applicant and was out of his control.  At the hearing, the applicant agreed that it was the cancelled visa that ultimately lead to the cancellation of his enrolment at [University 1], not the lack or lateness of the English results.  Nevertheless, the applicant was of the view that the delay in the English results, and that that was not his fault, was a factor the Tribunal should take into account when determining whether the visa should remain cancelled.

86.The delay in the PTE results is not a relevant factor to the Tribunal’s decision.   The Tribunal accepts that the delay was not a factor within the control of the applicant, and in any event had no bearing on the Confirmation of Enrolment at [University 1] being cancelled.

87.There are no other relevant considerations or matters.

Conclusion

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

DECISION

89.      The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Genevieve Cleary
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.