Ahmad (Migration)

[2018] AATA 5673

Ahmad (Migration) [2018] AATA 5673 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mansoor Ahmad

CASE NUMBER:  1621490

HOME AFFAIRS REFERENCE(S):           BCC2016/3383818

MEMBER:Joseph Lindsay

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector visa (subclass 573).

Statement made on 07 November 2018 at 10:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – Engineering – emotional distress –lack of evidence – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140, 359
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 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(a) of his visa, because the applicant was not enrolled in a registered course. In particular, the applicant has not been enrolled in a registered course of study since 3 September 2015.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared in person before the Tribunal on Wednesday 5 September 2018 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, then under s.116(1) of the Act, the visa may be cancelled. In particular, condition 8202(2)(a) provides that the visa holder must be enrolled in a full time registered course.

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

   Grounds for cancellation

8. In the hearing, the Tribunal made reference to the delegate’s decision record dated 7 December 2016, noting that the applicant provided a copy of the Department’s decision record together with his application to the Tribunal.

9. The Tribunal discussed with the applicant the grounds for cancellation of his student visa. The Tribunal referred to the decision record and noted that the delegate had found there were grounds for cancellation of the student visa on the basis that, in summary, the applicant had not been enrolled in a registered course of study since 3 September 2015.

10. In response, the applicant agreed that he had not been enrolled in a registered course of study since 3 September 2015, and he agreed that he had breached condition 8202(2)(a) of his student visa.

11. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a) of Schedule 8 to the Regulations and the Tribunal finds that there is a ground for cancellation of the applicant’s visa under s.116(1)(b) of the Act.

    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. In the hearing, the Tribunal noted the delegate’s decision record made reference to the fact that the applicant was given a notice of intention to consider cancellation on 21 November 2016, and that on 28 November 2016 the applicant responded to the notice. The applicant agreed these facts are correct.

14. The Tribunal discussed with the applicant the information he provided in his response dated 28 November 2016. In his response the applicant stated (unedited):

    I came to Australia in 2006 as a Student of Advance Diploma of Civil Engineering, Thus I have not completed the study i have done 90% of the course as you can understand it was a bit hard for me to at the start. further i have studied Diploma of Community Welfare and completed it. i also applied for TR and was on my way to apply for PR but the Immigration changes the rule for Community Welfare and i was not eligible to apply for PR just by getting 7 each in IELTS. I wanted to go back and finish my Degree in Civil Engineering so i enrolled again.

    As i have mentioned before, i have been living in Australia since 2006. I have experienced everything in this country. i came here as a young boy, i was in a stage to explore myself  and my beliefs. I have experienced things i have never thought would happen to me. The reasons of my study getting affected was me asking about myself and my believes. I am in the worse time of my life where i am not sure what i believe in and everything else. I am questioning my religion and understanding of it, which is very hard. It was very hard for me to focus on my study and life. i recently have visited back home as well just to know about myself better. I was going to classes but was very hard for me to focus and study at the time. I have studied books and my online research to have peace in my life and to get understanding of things. I have visited my GP so many times to get stress relieve medicine to sleep and relax. i was in the stage where i was suffering insomnia and anxiety.

    I also Suffer Deaths in the family during this time. My uncle has died which was not easy to cope between all the unpleasant things happening. My uncle was a father figure to me and we had a good bonding. This add fuel to the hard ship i was facing.

    I am eldest in the family including 4 sisters and a brother. My parents have big expectation from me. i want to be a role model for my siblings. I know i have been lost but i like to be given a chance to straighten things up and do the right thing. i have been here for long time and i like to complete my studies. i can't imagine the suffering of my parents to know about my visa cancellation. They see their future in me and i don't wanna disappoint them or suffer them in worse scenario.

    I have been in touch with few University to enroll in the course even before receiving this email. i was not able to provide you with a COE because of the short time to responding. but, given the chance i will do that straightaway and will send you the copy.

    I like you to consider my situation and give me a last chance to fix everything. I promise to be a good regular student and finish my studies. I will be ready and accept any consequences in the future but please i would request one last chance.

    I am hopeful i will be given a chance to continue as i understand Australia believe in giving chances.

15. The applicant indicated that his response was the best he could do at the time. The Tribunal then discussed with the applicant the various matters as detailed in the departmental guidelines.

    The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

16. The Tribunal noted what the delegate had said in relation to this issue and asked the applicant for a response in relation to this question. In short, the applicant indicated that he understood the delegate’s point of view and that he understood that his purpose in travelling to and staying in Australia was to study.

17. There is no information before the Tribunal that indicates that the applicant’s purpose in travelling to and staying in Australia was not to study. The applicant did not indicate to the Tribunal that he had a compelling need to travel to or remain in Australia.

18. The Tribunal places low weight on this information in the applicant’s favour.

    The extent of compliance with visa conditions

19. The Tribunal noted what the delegate had said in relation to this issue and asked the applicant for a response in relation to this question. In short, the applicant indicated that he understood the delegate’s point of view and that he understood that he had not complied with his visa conditions because he had not been enrolled in a registered course of study since 3 September 2015. The applicant explained that it had been hard for him to get out of bed.

20. The Tribunal places low weight on this information in the applicant’s favour.

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

21. The Tribunal noted what the delegate had said in relation to this issue and asked the applicant for a response in relation to this question.

22. In response, the applicant indicated that if his visa was cancelled it would impact on his family in Pakistan and would be a big failure for himself and his family because of the troubles he was facing. When the Tribunal asked the applicant what troubles he was facing in Australia, he indicated he did not know how to explain it because he was nervous. The Tribunal asked the applicant whether he was under any medical care or taking any medication or under the care of a psychologist, to which he indicated that he was not under any medical care or taking any medication or under the care of a psychologist. The applicant then indicated he sometimes went to his GP to get medicine to calm him down. When asked whether he had any evidence of this, he indicated that he did not.

23. The Tribunal accepts there may be some hardship to the applicant and his family members if his student visa is cancelled. However, there is no indication that the applicant could not continue his studies in Pakistan if he chose to do so.

24. The Tribunal places low weight on this information in the applicant’s favour.

    The circumstances in which the ground for cancellation arose

25. The Tribunal noted what the delegate had said in relation to this factor.

26. In response, the applicant indicated that he was just waiting to have his student visa back so he could apply for another course.  

27. The Tribunal asked the applicant how long had he been in Australia until now, to which he indicated that he had been in Australia for eleven and a half years. The applicant indicated that in that time period he had studied community welfare and a Diploma of Civil Engineering. The applicant indicated that he wanted to finish his Bachelor of Engineering but then his personal life affected his visa.

28. The applicant indicated he had experienced mental health issues and deaths in his family and that these issues had affected his ability to study. However, the Tribunal noted that the applicant had provided no documentary evidence in relation to any mental health issues or deaths in his family. Even though the applicant indicated he would provide documentary evidence in relation to his claimed mental health conditions, as at the time of this decision no documentary evidence has been provided.  

29. The applicant also indicated that he had been struggling with his Muslim faith and had come to the conclusion that he no longer believed in Islam. The Tribunal put to the applicant that he indicated to the Tribunal that he had let his enrolment lapse in 2015 due to this issue (i.e. no longer believing in Islam), with which the applicant agreed. When the Tribunal asked what he had done to address this issue, the applicant indicated he was trying to work out how to balance his life. The Tribunal put to the applicant that he was not being clear about this point and that he was not being clear about what concrete steps he had taken to address the situation in regard to his study enrolment. The Tribunal put to the applicant that it was having some difficulty in connection with what the applicant was saying about the fact that he allowed his enrolment to cease and that, as of the date of the hearing, there was no documentary evidence to support anything the applicant had said at the hearing, let alone what he had done about his course of study. The applicant indicated that he could understand the Tribunal’s point of view.

30. In assessing the information above, the Tribunal reasonably expects that if the applicant had experienced mental health issues or deaths in his family, he would have provided documentary information in relation to such matters. Given that he did not provide such documentary information, the Tribunal does not accept the applicant’s submissions that he had experienced mental health issues and deaths in his family. In regard to the applicant’s submission that he no longer believed in Islam and that this impacted on his ability to study, the Tribunal does not accept that the applicant’s submission adequately explained his actions in allowing his course enrolment to cease in 2015 and to, essentially, not take any corrective actions since that time to continue with his studies.

31. Accordingly, the Tribunal finds that the circumstances in which the ground for cancellation arose neither reasonably nor sufficiently explain the applicant’s decision to allow his course enrolment to lapse in 2015 and do not convince the Tribunal that the Tribunal’s discretion should be exercised in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

32. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

33. The Tribunal places low weight on this information in the applicant’s favour.

    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

34. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

35. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully. The Tribunal notes that Departmental records indicate that the applicant is in fact unlawful and there is no indication that the applicant has applied for a Bridging Visa of any kind since his student visa was cancelled. There is no indication that the applicant was in detention.

36. The Tribunal accepts that the applicant will receive a three year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal places low weight on this information in the applicant’s 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

38. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he did consider there would not be a breach of any international obligations if his student visa was cancelled.

39. The Tribunal places low weight on this information in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

40. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that things did not look good for him but he had been straightforward. The Tribunal put to the applicant that during the hearing he had been vague in his responses and gave general reasons as to why he allowed his enrolment to cease and what he had done in Australia since that time. In response, the applicant indicated that he understood that the evidence in his case was not there. The applicant indicated that he was suffering challenges that he could not prove, and that he could not even ask anyone to provide proof his uncle died. The applicant indicated that his culture and background were very different and conservative. The applicant indicated that Pakistan does not issue death certificates unless the authorities are asked to. The applicant indicated that the situation looked bad for him and he understood why it looked bad for him, but he was still suffering and there was a reason behind it. The Tribunal put to the applicant that, in attempting to explain his circumstances, the reasons the applicant put forward to the Tribunal did not appear reasonable and they did not appear to be sufficient in the circumstances due to the very long period of time he had to prepare for the hearing. In response, the applicant indicated he could not provide proof, no matter how long he was given. When asked what he had been doing in Australia for the last two years, the applicant indicated that he had been working in a warehouse.

41. The Tribunal has no information to suggest that the applicant has not cooperated with the Department either in the past or present.

42. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

43. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise. 

44. In accordance with s.359AA of the Act, the Tribunal spoke with the applicant about his PRISMS record and the applicant’s history of academic enrolment. The Tribunal put to the applicant that it may find that the applicant had showed a pattern of behaviour in cancelling his student enrolments. After an adjournment, the applicant indicated that the information on the PRISMS record was accurate but that he did not agree that there was a pattern of behaviour of him cancelling his student enrolments. The applicant indicated that his courses were cancelled because he had applied for temporary residency because a person cannot hold two visas.

45. In assessing the above evidence, the Tribunal places no weight on the evidence in the applicant’s PRISMS record and the Tribunal places low weight on the information the applicant provided the hearing in the applicant’s favour.

    Conclusion

46. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 22 July 2013, now over five years ago, the applicant has not completed any higher education courses.

47. The Tribunal finds that since 3 September 2015 the applicant has not been enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2).

48. The Tribunal is not satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.

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

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s the applicant’s Student (Temporary) (class TU) Higher Education Sector visa (subclass 573).

    Joseph Lindsay
    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.