Afzal (Migration)

[2019] AATA 4402

Afzal (Migration) [2019] AATA 4402 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yasir Afzal
Miss Noreen Akbar

CASE NUMBER:  1709889

HOME AFFAIRS REFERENCE(S):           BCC2017/1024212

MEMBER:Sean Baker

DATE:13 June 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 13 June 2019 at 12:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course – gap in enrolments – family health and financial difficulties – limited academic progress – genuine student – 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 2 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 572 Vocational Education and Training 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 been enrolled in a registered course, had therefore breached a condition on his visa, on which basis the visa was liable to cancellation, and the factors against cancelling the visa did not outweigh those in favour. 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 with his application for review.

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 other 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant appeared before the Tribunal on 31 May 2019  to give evidence and present arguments.

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 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?

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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   …

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course for the period 15 August 2016 to 2 May 2017.

9. At hearing the applicant initially said he had been enrolled in a registered course, a Diploma of Management leading to an Advanced Diploma of Management, for part of this period. He said he did not have any evidence of this but he thought he had been enrolled. I noted that I may place greater weight on the information in the Department decision which relied on Departmental systems that indicated he was not enrolled for this period. The applicant conceded that, due to non-payment of fees, his provider may have cancelled his enrolment at the beginning of this period.

10. The applicant’s claim that he was enrolled for some or all of this period was not convincing and he was unable to provide any evidence that he had been enrolled. I prefer and give greater weight to the information in the Department decision which relies on Departmental systems to find that the applicant was not enrolled in a registered course after 15 August 2016 until his visa was cancelled, on 2 May 2017.

11. 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).

    Consideration of the discretion to cancel the visa

12. 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’

13. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) by the Department prior to the cancellation, which sought his response to the potential breach and any factors which would lead to the visa not being cancelled. The applicant responded, briefly, to the NOICC, and said that from the start of 2016 his family were having a few problems back in his home which badly affected his physical and mental health here. These problems included his mother’s diagnosis of cancer and her treatment and the fact that his brother had gone to another country to get a job but had had to be supported by their father. This was emotionally and financially hard but he said things were getting back to normal and he asked for another chance. He said if he was, he would get admission in a full time course.

14. The applicant sent the Tribunal prior to the hearing a short statement in which he reiterated the above points, stating that his mother’s cancer treatment was paid for by his father and was in excess of 1.5 million. Because of this and his father having to support the applicant’s brother, his father’s life savings were finished and his father had to take personal loans. The applicant felt low and depressed. He had severe depression at that time. He included his offer letter, dated 23 March 2016 from VICAT for the Diploma and Advanced Diploma of Marketing.

15. After the hearing the applicant provided copies of documents to the Tribunal, including documents about his mother’s cancer treatment and correspondence of the applicant with his provider from June and July 2016.

16. This information, as well as the evidence he gave at the hearing, has been taken into account when considering the below.

    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

17. The applicant said that he had come to Australia in September 2006, to study a Diploma of IT (networking). He had completed a certificate IV in this field and had then moved into his hospitality management course. He said he completed a certificate III and Diploma of hospitality management at IHMA. He said he had had to apply for a new student visa to complete this. There was then a 2 year period where he held a bridging visa whilst he waited for his skilled temporary residence visa to be granted. This was granted after a period and he held a temporary residence visa for 18 months. He said he had tried to get permanent residence but did not manage to and so he applied in July 2016 for a further student visa to study a diploma and advanced diploma of management. He said he had not completed any courses in 2016 and then his visa was cancelled in 2017.

18. I asked the applicant if he had a compelling need to remain in Australia. He said he did, he wanted to get some study and get some experience and skills. I pointed out that he had done this, gaining two qualifications and working. He agreed but said that he wanted to gain further qualifications, in management or automotive. I asked if he could do this training in Pakistan and he said he could but that the level of society over there meant that you could learn a lot more here. He said over there it is different.

19. The applicant showed me at the hearing his certificates of attainment for the Certificate III and Diploma of Hospitality Management from IHMA, completed December 2009.

20. Having considered his responses and the material before me, I accept that the applicant travelled to Australia to study. However, after 2009 there is little before me to indicate that he continued to intend to study – whilst I accept that for part of this time he held a skilled visa, there was a period of 8 years in which he remained in Australia and did not study.  For this reason I am very sceptical of his claim that he wishes now to study further. When I spoke to him about whether he could instead do the courses he claims he wishes to pursue in Australia in Pakistan instead, he was not convincing or detailed when describing why he wished to study in Australia instead, nor was he able to detail in any sense a compelling reason to remain in Australia. For these reasons I give this factor only very little weight in favour of the visa not being cancelled.

    the extent of compliance with visa conditions

21. The applicant said that apart from condition 8202, he had complied with all other conditions on his student visa. There is no information before me to suggest otherwise and I accept this. The breach of condition 8202 found above is for a significant period of time however, and as below I am not wholly satisfied that the reasons he has given for the breach explain or excuse the breach, and I therefore give this factor some weight towards the visa being cancelled.

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

22. I asked the applicant to detail any hardship that, he, his wife or anyone else would suffer if the visa remained cancelled. He explained that his wife had returned to Pakistan because her parents were not well. He said that the continued cancellation would affect him, he had some plans and these would be affected. He did not detail any further hardship. I have considered the response of the applicant. Whilst I accept that he, and his wife and family may suffer some hardship if the visa remains cancelled, he made no claims and I do not accept that he or anyone else would suffer significant hardship if the visa remains cancelled and I give this factor only little weight towards the visa not being cancelled.

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

23. In his statements to the Department and to the Tribunal he explained that his mother’s cancer affected him and caused him to feel low and suffer what he claimed was severe depression. He also explained that his father had had to support him and his brother, causing financial stress for the family.

24. At the hearing the applicant explained that he started the diploma of management in July 2016 but he had not completed any subjects. He said he had stopped going to classes around September 2016, he was going just once a week he said. The college emailed him and said they would cancel his visa. He tried to ask some time from them but they were very strict, and so he got the email from the department saying they would cancel the visa.

25. He said this was because his mother got cancer and his family faced financial pressure supporting him and his brother who went to Saudi Arabia to find a job but could not find one for a year. I asked when his mother got cancer and he said in 2015, she was still alive. He said he had returned to see her in 2012 and 2014. The applicant said because of his mother’s illness he fell into a deep depression. I asked if he had gone and seen a health professional about this and he said he had not, he had cut himself off from everyone. After the hearing the applicant provided receipts from a Pakistan cancer hospital in the name of his mother dated 2013 – 2018.

26. I asked if he had gone to his College to ask for a deferment or special consideration. He said he had not, he only went to see them when they were pushing him to pay fees. I asked him if he had asked his college for a payment plan. He said he just went in person so he had no evidence of having gone to speak with his provider. After the hearing the applicant provided email correspondence between him and his college dated June and July 2016 in which representatives of his provider warn him that he was at risk of exceeding course duration for non-submission of units and noting that it was a condition of his visa that he maintain satisfactory academic performance and requesting he schedule a meeting with his provider. The applicant responded that due to his illness he could not make the meeting and requested it be rescheduled.

27. I have carefully considered the evidence of the applicant. Whilst I accept that his mother suffered from cancer, I also find that this was diagnosed earlier than claimed on the basis of the materials he provided, at least as far back as September 2013. I note also that despite claiming to have fallen into a deep depression because of his mother’s illness, he was unable to provide any information to establish this – he did not see a medical professional, nor did he seek special consideration or deferral from his provider. I found his evidence about stopping going to classes and the interaction with his provider unconvincing. I note that the documents he has provided indicate that he had submitted 0 units of the first two he was required to complete, in June July 2016, prior to when he claimed he had stopped attending classes in September. These emails are suggestive that the issue with his provider was not solely in relation to non-payment of fees as he appeared to suggest at hearing, but may also have been in relation to his lack of satisfactory academic performance. This also leads me to have some doubts about the applicant’s claims that he and his family were suffering financial hardship at this time. Again he has provided little detail or evidence to support this. I accept that his mother suffered from cancer and that this would have had some effect on the applicant. I do not accept that he was depressed or in a deep depression. I do not accept that his family had financial difficulties. Having considered the claimed circumstances, I am not persuaded that these explain or excuse his non-enrolment for the period. I therefore give this factor very little weight towards the visa not being cancelled.

28. I am willing to give some weight to the evidence of his mother’s illness as a general factor which may have limited his attending to his studies, but none of the other explanations are convincing. I therefore give this factor only very little weigh in favour of the visa not being cancelled.

    past and present behaviour of the visa holder towards the department

29. The applicant responded to the NOICC and has engaged with the process. I give this little weight towards the visa not being cancelled.

    whether there would be consequential cancellations under s.140

30. The applicant’s wife’s visa was cancelled as a result of the cancellation of his visa. She has now returned to Pakistan, but the applicant said if he was successful she would apply to return to Australia. I give this little weight in favour of the visa not being cancelled.

    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

31. The applicant confirmed at the hearing that if the visa remained cancelled he would return to Pakistan. Therefore he would not become unlawful and be subjected to mandatory detention. Whilst he would be limited in the visas types he could apply for if the visa remains cancelled, this is the intended function of the provisions. I give this factor no 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

32. At the hearing the applicant said he could return to Pakistan. When I asked if there was any reason he may be harmed on return he said he didn’t know, he loved politics. I asked if he had any political affiliation and he said he did not, he just loved reading. On the applicant’s evidence I do not accept there are any refoulement considerations and I give this factor no weight.

    any other relevant matters.

33. The applicant claimed that there was no scope in hospitality management (his rea of training in Australia) if he had to return to Pakistan. I noted that there were many hotels, catering to domestic and international travellers in Pakistan. He said that this was not his area of interest, he was interested in management which would get his degree started. He said if the visa was reinstated he would study management or automotive management and then he would definitely go back.

34. I noted to the applicant that an additional relevant matter appeared to me to be whether he was or would be a genuine student if the visa was reinstated. I noted that he had remained in Australia for 13 years, with a low level of educational attainment (bearing in mind he had held a temporary residence visa for some of that time) which may lead me to doubt he was or would be a genuine student. He responded that the problem was that there were transitional changes for his move from temporary residence to permanent residence and his agent back then had stuffed up. I noted there appeared to be an additional concern which was the concept of genuine temporary entrant in the student visa class. I noted that his long residence in Australia, his few trips back to Pakistan, might indicate he intended to remain for a longer or permanent period. He responded that just wanted to do his management or automotive management course and then he would definitely go back.

35. I have carefully considered the applicant’s evidence. He has remained in Australia for 13 years, with only a few trips back to Pakistan. I consider that this length of time is inconsistent with the concept of a person being a genuine temporary resident who travels to Australia to study and perhaps to work temporarily before returning to their home country, and is strongly indicative that the applicant intends to remain long term or permanently in Australia. but of more concern to me is the applicant’s lack of clarity about his intended study – stating at the end that he wanted to do management or automotive management, two very different fields, with little relationship to his previous studies. He has achieved few educational milestones here and the documents he provided after the hearing indicate he submitted 0 units from his first 2 units in his studies in 2016. The evidence before me indicates, I find, that the applicant ceased to be and is no longer a genuine student. I have no confidence that, were the visa to be reinstated, he would study, nor do I have any clarity about which field he would study in. I give this factor significant weight towards the visa being cancelled.

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

    DECISION

37. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Sean Baker
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.