Afzal (Migration)

[2020] AATA 1116

Afzal (Migration) [2020] AATA 1116 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Danish Afzal

CASE NUMBER:  1932586

HOME AFFAIRS REFERENCE(S):          BCC2019/3262193

MEMBER:Peter Booth

DATE:17 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 January 2020 at 8:32am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – personal medical issues – applicant changed to diploma level course – family medical issues and financial hardship – decision under review affirmed     

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 did not comply with condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 15 January 2020 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 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?

7. 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

9. The delegate’s decision cancelling the applicant’s student visa is dated 7 November 2019. In that decision the delegate found that the applicant had not been enrolled in a registered course of study since 8 July 2019. At the hearing the applicant confirmed the accuracy of the finding. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

10. 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 of Home Affairs’ Procedural Instruction ‘General visa cancellation powers’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    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

12. The applicant gave evidence that he arrived in Australia on 1 January 2018 as the holder of a Student (Subclass 500) visa. His intention was to study a Master of International Relations. He gave no evidence as to any compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant confirmed that he had not been enrolled in a registered course of study from 8 July 2019.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The applicant gave evidence that prior to arriving in Australia he had completed a Bachelor of Business Administration and a Master’s degree in Islamic education. He said that after arriving in Australia he commenced the Master of International Relations course but did not complete it. He said that “I went to uni, I got a pollen allergy, I could not stay there because of my lungs, I moved to Sydney, I asked them for a release letter, I enrolled in a Diploma of Leadership and Management”. He did not elaborate. He went on to say that he commenced the Diploma of Leadership and Management in “May 2018” and completed it on “12 May 2019”.

16. The applicant then said that “there was an issue at home, a gas explosion, both my father and sister were burned, the house was damaged, my father was in hospital for two months, there was a financial crisis, I could not get enrolled because I did not pay the fees”. He did not elaborate. This apparently was the explanation as to why he was not enrolled after 8 July 2019. The Tribunal enquired whether the applicant had attempted to find employment and pay his own tuition fees to which he said “yes, I started working part-time, in April 2019, in a convenience store and a restaurant, I earned $200-$300 each week, I did not tell my parents that the visa was cancelled”.

17. The applicant’s visa is due to expire on 15 March 2020. The Tribunal enquired as to his intentions to which he said “I have enrolled in a Graduate Diploma of Strategic Leadership, commencing on 3 February 2020 and to be concluded on 29 January 2021”. He produced a confirmation of enrolment document to that effect. The Tribunal enquired when he had enrolled in the course to which he said “in this last week”. He did not elaborate. The Tribunal enquired how he was paying tuition fees and other expenses to which he said “my savings and borrowings from friends”. He did not elaborate. The Tribunal enquired of the applicant’s intention in studying this course to which he said “it is related to my previous course, leadership and management, and then I will do a Master’s degree”. The Tribunal enquired why the applicant had not into enrolled in a Master’s degree rather than the vocational course to which he said “Christmas holidays, the fees are too high, my father is trying to sell land at home”. He did not elaborate. The Tribunal enquired as to the cost of a Master’s course to which he said “$10,000 a semester, $15,000 a semester”. He did not elaborate. The Tribunal enquired as to the fees for the Graduate Diploma of Strategic Leadership to which he said “$12,000, got a discount, of $2,000”.

18. The applicant provided a variety of documents at the hearing. The Tribunal dealt with them in turn. There was a transcript of academic record dated 13 May 2019 in respect of a Diploma of Leadership and Management course and a certificate of completion in respect of that course dated 8 July 2019. The Tribunal accepts that the applicant completed this course. Next was a variety of medical records in respect of, apparently the applicant’s father. There was no medical opinion evidence; rather these documents appeared to consist of treatment notes both in English and a foreign language from the plastic surgery department of, apparently, a hospital, pharmacy receipts and a hospital charges receipt. The Tribunal accepts that the applicant’s father suffered some injuries. The dates of the documents, to the extent ascertainable, appeared to traverse the period approximately April to November 2019. Thirdly a report from a psychologist dated “10/11/20”, obviously an incorrect date. Nonetheless the report is in respect of “initial assessment” of the applicant involving “a clinical interview and a number of clinical assessments”. These assessments were apparently undertaken on 7 January 2020 and 10 January 2020. The report, which is largely dependent upon the rehearsal of events by the applicant to the psychologist, concludes that the applicant appears to meet the criteria for Post traumatic stress disorder. The condition apparently relates to the injuries suffered by the applicant’s father and sister. The psychologist also states “I would like to request special consideration for his continued study in Sydney, Australia so that he may be able to complete his advanced qualification”. The report also records the applicant informing the psychologist as follows “… also reported feeling guilty being in this current situation due to his visa being cancelled and wished that he had organised his own finances and not just relied on his father financially for his university fees”. The Tribunal enquired why the applicant decided to seek psychological assessment in January 2020 if he had had better been suffering from depression since April 2019 and asked whether this was a reason why he had not enrolled in 2019 to which he said “yes both this and financial issues”. He did not elaborate. The applicant declined an opportunity to add anything further to his application for review.

19. The applicant’s migration agent, Mr Rafi, had filed a submission in respect of the application for review. It is dated 14 January 2020. The Tribunal informed the migration agent that the submission had been read and invited him to make any further submissions. The migration agent made some short points broadly consistent with the applicant’s evidence and the content of the written submission dated 14 January 2020. The written submission has been taken into account.

20. The applicant was invited to make any further comments upon anything arising from the migration agent’s submissions but he declined. The Tribunal went on to enquire how the applicant was paying for the current course to which he said “I have a payment plan, five instalments of $1,500 each two to three months”. In answer to a further question if he said that he had saved between $4,000 and $5,000 and he got a discount of $2,000 in the current course and that his father was trying to sell some land.

21. The Tribunal accepts that the financial support provided by the applicant’s family was interrupted during 2019 and as a consequence the applicant was not given finances which he required for tuition. The Tribunal considers that the applicant is responsible for his tuition fees. It is incumbent upon a student to work or otherwise derive income sufficient to pay tuition, if the student cannot depend upon family for financial support . In the applicant’s situation the Tribunal considers it is reasonable to expect the applicant to have either funded the tuition himself or if that was not possible to defer the course or return to his home country until finances were sufficient to allow him to continue studies. In those circumstances the Tribunal is not satisfied that the inability to enrol was beyond the control of the applicant.

    Past and present behaviour of the visa holder towards the Department

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

23. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

24. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

25. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

27. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)    a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)     must be enrolled in a full time registered course; and

    (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.