Ahmad (Migration)

[2018] AATA 816

Ahmad (Migration) [2018] AATA 816 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Atteeque Ahmad

CASE NUMBER:  1732621

DIBP REFERENCE(S):  BCC2017/3700582 PNJ

MEMBER:Brendan Darcy

DATE:21 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2018 at 1:23pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Unable to pay course fees – Family’s financial situation – Not enrolled in a registered course – Deferment of studies – Fraudulent documentation – Death certificates – Credibility concerns – Inconsistent evidence

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 12 December 2017 made by a delegate of the Minister for Immigration 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 breached condition 8202 of Schedule 8 to the Migration Regulations 1994 imposed on his visa and was not satisfied the grounds for cancelling the visa did not outweigh the grounds for not cancelling. 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 13 March 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The hearing was conducted via video between the Tribunal’s Melbourne and Perth offices.

4. 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

5. 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?

6. 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).

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

8. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Class TU Subclass 573 Higher Education Sector student visa on 16 February 2015, which was due to expire on 15 March 2018 and that the course of study was a Bachelor of Business at Edith Cowan University (ECU).  It also shows that Provider Registration and International Student Management System (PRISMS) records indicate the applicant had deferred in the same course of study from 12 February 2016 until 17 June 2016 and then again between 10 March 2017 and 30 June 2017 for the same course.  The applicant’s enrolment was later cancelled from 22 September 2017 until 16 December 2017.  As discussed in the hearing, the applicant did travel to Pakistan between April and June 2016 during the initial approved deferment.   The PRISMS record indicates that there was non-payment of the fees for the enrolled Bachelor of Business course on 22 September 2017.

9. The decision recorded states the applicant was validly issued a Notice of Intention to Consider Cancellation (NOICC) on 30 November 2017 and that the applicant was granted an extension of time to gather documents to support his visa not being cancelled.

10. On 12 December 2017, the applicant submitted to the Department of Immigration (the Department) a Confirmation of Enrolment (CoE) dated 7 December 2017 for a Diploma and a Bachelor of Community Services with Stott’s College (Acknowledge Education Pty Ltd) to commence on 12 February 2018.

11. The applicant also submitted the following:[1]

    ·     Two hospital documents indicating that the applicant’s father had been treated for a back injury at Jinnah Hospital, Lahore in Pakistan;

    ·     A medical certificate signed by the orthopaedic surgeon for the applicant’s father indicating he was receiving treatment for his back pain dated 5 December 2017;

    ·     A death certificate issued by Lahore General Hospital for a 35-year old man called Ishaq indicating that he died on 20 November 2017 from a cardiac arrest;  and

    ·     A letter of appeal for the Department not to cancel ‘student visa 573’ written by the applicant dated 7 December 2017.

    [1] BCC2017/3700582 Folio 9-13.

12. This vaguely written statement claimed the applicant was unable to pay fees due to heavy problems back home and that the university staff did not provide him with appropriate advice and counselling; and that he re-enrolled in another Bachelor course. The applicant elaborated that his father has been in hospital since 12 September 2017 and could not forward the money for tuition fees to the applicant due to his illness; that other family members were involved; and that the applicant was depressed. The applicant added that his best friend passed away which added to his sadness and that his priorities changed from doing business to community services for study as he wanted to contribute to the Pakistani community to which he belongs.

13. The Department proceeded to cancel the visa on 12 December 2017, noting that PRISMS records indicate that the applicant was not enrolled in a registered course of study between 22 September 2017 and 6 December 2017 and that the applicant had only enrolled in a subsequent course of study after the NOICC had been issued on 30 November 2017.  The delegate stated the applicant was specifically in breach of condition 8202(2)(a).

14. The decision record was attached to the applicant’s valid review application, along with all the documents mentioned in paragraphs 11 and 12, as well as a statutory declaration signed by the applicant and dated 5 December 2017 (which does not appear on the Departmental file) indicating that the applicant’s family currently and foreseeably has the financial capacity for meeting tuition fees on time. Prior to the hearing on 9 March 2018, the applicant submitted further medical evidence regarding his father’s back injury and treatment, regarding his enrolment into a medical college in Pakistan; and a ‘Statement of Purpose’ by the applicant.[2]

    [2] AAT Folio 83-87.

15. During the scheduled hearing, the applicant did not deny was not enrolled during this period of time or that he was in breach of condition 8202(2).

16. At the hearing the applicant submitted evidence of remittances to support his claim that his father financially supported him.[3]  In a post hearing submission, the applicant provided additional affidavits, emails and a written statement in favour of his visa not being cancelled.[4]  The applicant requested an extension to provide further evidence which was granted. The applicant then provided an additional affidavit and his stepmother’s death certificate by 19 March 2018.[5] On the same day, the representative wrote to the Tribunal indicating that it did not require the extension for submissions.

    [3] AAT Folio 91-92.

    [4] AAT Folio 95-113.

    [5] AAT Folio114-115.

17. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study between 22 September 2017 and 6 December 2017 – a notable period of time in which the applicant could have rectified their non-compliance with conditions 8202(2).  

18. 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

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    Cumulative credibility findings

21. In this case, the Tribunal is required to make an overall credibility finding about the applicant’s claims about the extenuating circumstances leading to the cancellation of this visa under review. In particular, the Tribunal is deeply concerned about the provision of fraudulent documents to the Tribunal.

22. Of particular concern is a submitted jointly signed but undated affidavit claiming to be by the applicant’s father, brother and stepmother.  This document was originally submitted to the Department as part of the applicant’s response to the NOICC. It was also submitted to the Tribunal. The affidavit states the following:

    1-I father of Mr Atteeque Ahmad here by confirm that I was getting treatment for the last 6 months. I was having back bone problem and being treated for the last 6 months.

    All the medical reports and certificates are here by attached and verified.

    2-I Adeel Ahmad brother of the Mr Atteeque Ahmad confirm that my father was facing back bone problem for the last 6 months.  All the medical reports attached. My father was getting treatment in my presence and getting recovering. [sic]

    3-I Rubina Liaquat wife of Mr Liaquat Ali is here by confirm that my husband Liaquat Ali was getting treatments for last 6 months and now is getting better and having treatment continuously. [sic]

    Signature: Liaquat Ali

    Signature: Adeel Ahmad

    Signature: Rubina Liaquat

23. In the applicant’s written response to the NOICC, there was no mention of the passing of the applicant’s stepmother as being one of the reasons the applicant had not been engaged in his studies at the beginning of 2016; however, in the applicant’s written ‘Statement of Purpose’ he wrote ‘During the course my mother died and I got deeply depressed and got anxiety problems as I could not accept the death of my mother’s [sic]. But I tried to continue my studies’. There is no mention in the statement that the affidavit is inaccurate or misleading or the applicant wished to correct the record. The Tribunal enquired during the scheduled hearing about the fact that an affidavit written after his father’s medical treatment included a statement and signature from his deceased stepmother and the reason this factor was not mentioned earlier. The applicant explained as following: the applicant’s mother was not his stepmother but his father’s second wife; she passed away in early 2017; his younger brother obtained the signed affidavit with a false signature; and the applicant submitted the document without checking it as he needed it urgently for his NOICC response and it was a huge mistake. The applicant added that his stepmother’s serious illness in February 2016 was the reason for his two deferments of studies (February 2016 to June 2016; March 2017 to June 2017). The applicant insisted that his stepmother had passed away and he undertook to obtain a death certificate after hesitating that it would be difficult. (In this regard the Tribunal noted during the hearing that given the applicant was able to obtain a death certificate from a person who was not part of his immediate family, it would be reasonable to obtain his stepmother’s death certificate.) The applicant also undertook to provide emails with his education provider regarding the reasons for compelling and compassionate deferment, which he did. In further support of his claims, the applicant submitted an additional signed statement, ‘Letter of Reason’, regarding his stepmother outlining that regarding the initial deferment which began in February 2016 he did not leave the country immediately as his father said his wife was getting well; he tried to return to his studies but it was too late as the semester had started; and he travelled to Pakistan in April anyway. With regards to the second deferment in February 2017, the applicant claimed his stepmother passed away on 2 March 2017 but as the financial condition of his family was beginning to deteriorate he did not return. He added that it was at this time he had anxiety problems arising from her sudden passing.

24. Also as part of the applicant’s post hearing submission, the applicant submitted four further affidavits: two of the affidavits claiming to be from two cousins stating themselves to be witnesses to the back injury treatment of the applicant’s father; while the third claimed to be signed by the applicant’s father outlining he was gaining medical treatment in various public and private hospitals, his younger son was under age and immature and obtained an affidavit signed by his deceased wife and that his health and financial situation had stabilised so he can support his son’s studies in Australia. The applicant also provided an affidavit from his younger brother admitting to his mistake in submitting a fraudulent affidavit and that it was not his intention and that he had no experiences in these matters of affidavits. The Tribunal also notes the applicant submitted a national identity card claiming to belong to Adeel Ahmed indicating that he was born on 14 August 1998 and that he was not a minor in December 2017 – the month he acquired the affidavit.

25. The applicant did however provide a copy of a death certificate regarding his stepmother as part of his post hearing submission. The certified document is on ‘Services Hospital Lahore’ letterhead and the details of the death are hand written, indicating that the applicant’s stepmother died of a cardiac arrest on 2 March 2017. In the context of the fraudulent behaviour in submitting a falsely signed affidavit, it is curious that the applicant was unable to submit a death certificate issued by the provincial Government of Punjab – samples of which are easily obtained from the internet.[6] Such documents are easily obtainable and should have been readily available to the applicant’s father who claims to be the stepmother’s husband.  According to the most recent report by DFAT on Pakistan, document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.  More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common.[7]  Based on this country information and in the context whereby the applicant has already provided the Department with a fraudulent affidavit, the Tribunal does not accept the certified copy of the death certificate for Rubina Liaquat, the applicant’s claimed stepmother, to be genuine and accordingly places no weight on the death certificate as evidence to support the applicant’s claims that his stepmother’s death affected his studies and non-enrolment.  In making this finding, the Tribunal finds that the applicant has again submitted a fraudulent document which has further invited the Tribunal to consider that other documents the applicant has submitted are either fraudulent or contain false statements.

    [6]

    [7] DFAT Country Information Report Pakistan, 1 September 2017, relevant paragraphs: 5.43 and 5.44.

26. By the applicant’s own admission, the Tribunal finds that the applicant has submitted a falsely signed affidavit. The applicant provided reasons for its submission that his immature and inexperienced brother who was apparently a minor acquired it and that the applicant did not fully check it prior to his submission due to the deadline he was trying to meet with the Department. The Tribunal has also made findings that the applicant has continued to provide more than one fraudulent document, namely the death certificate regarding his stepmother. It is in this context that the Tribunal finds the applicant’s explanations are not satisfactory as there is too much mutually unsupportive evidence, when cumulatively considered, to accept the applicant’s overall claim that his stepmother was seriously ill in 2017; that she died in March 2017; that he suffered psychologically; and that his father’s illness caused the applicant’s non-enrolment. On the one hand, the applicant claimed to have suffered significant psychological symptoms; but, on the other hand, as discussed in the hearing, the applicant did not have any evidence about psychological symptoms from a medical professional or psychologist as he did not seek any medical assistance. On the one hand, he claimed the apparent depression and anxiety arising from his stepmother’s illness and his subsequent deferments were key factors; but he did not raise it in his NOICC response and he provided a false document pertaining to be his stepmother’s death certificate. The applicant provided a document from his father and younger brother who had both signed a false affidavit with his father’s deceased wife’s statement and signature in it, inviting the Tribunal to place little or no weight on any submitted affidavits from any claimed witnesses. The applicant also claimed his brother was a minor but submitted a national identity card indicating that his brother was nineteen years of age during the relevant timeframe. The applicant claimed he sought his initial deferment due to his stepmother’s poor health in 2016 and his subsequent depression but did not depart Australia in early 2017 when she apparently died and he provided no email evidence to support the claim.  Critically the applicant was responsible for submitting the false statement as part of his NOICC response and his shift of responsibility towards his younger brother was not in itself a compelling or satisfactory answer.

27. When cumulatively considering the level of fraudulent material and statements submitted and the mutually unsupportive written and oral evidence, the Tribunal finds that the applicant deliberately and knowingly submitted fraudulently obtained documents to augment his otherwise weak and unconvincing reasons for not being enrolled at the time of his NOICC response. This has so extensively undermined the applicant’s overall credibility that it cannot provide him with the benefit of the doubt about his critical claims and it has invited the Tribunal not to accept other documentary, written and oral evidence as genuine, credible or reliable.

28. It is in the context of the applicant lacking overall credibility that the Tribunal makes the following adverse credibility findings which will be relevant when considering its discretionary assessment on whether the visa should remain cancelled or not.

29. As the Tribunal finds that the applicant has deliberately and knowingly submitted a fraudulently signed affidavit to augment the otherwise weak and unconvincing reasons he was not enrolled at the time of his NOICC, it does not accept the subsequent affidavits, including by his father, reflected the genuine financial circumstances that the applicant was unable to pay tuition fees. Indeed, the Tribunal’s credibility concerns are so deep that in the context of not providing a death certificate for his deceased stepmother, it does not accept the applicant’s stepmother had passed away at all and that the affidavit’s contents were false and misleading as well as the written and oral evidence provided by the applicant about his stepmother affecting his studies, the basis for his deferment and a contributing factor towards non-enrolment and the breach of condition 8202(2).

1. The Tribunal’s credibility concerns about his friend’s death certificate were also aroused when the applicant said the name of his friend was SHBIR and that the submitted death certificate was on hospital letterhead, not from relevant Punjabi agency. When the Tribunal asked the applicant to explain why he had provided a different name, the applicant responded that Shbir was his nickname. When it asked why the death certificate mentions his friend succumbing to cardiac arrest, the applicant said that is how deaths from illicit drug overdoses are recorded in Pakistan.  In the context of the Tribunal’s considerable adverse credibility findings with particular emphasis that the applicant has provided a fraudulent death certificate and affidavit as part of this review applicant, the Tribunal does not accept the applicant’s explanations for these inconsistencies. According it finds that this earlier death certificate is not a genuine document or that the applicant had friend who died of a drug overdose leading to further psychological and emotional problems in the second half of 2015 as a contributing factor towards non-enrolment and the breach of condition 8202(2).

2. While the Tribunal accepts that the applicant was able to provide genuine documents from a public hospital in Lahore about his father being surgically treated for a genuine back injury, it does not accept the claim that the family was unable to pay those fees for the following reasons.

3. The applicant provided mutually supportive written and oral evidence about his family’s financial capacity.  In the written statement to the Tribunal (Statement of Purpose) prior to the scheduled hearing, the applicant stated:

   I am capable to support my financial needs because I belong to a high class family. And y my family is also a landlord family. My father is sponsoring me because they want me to study higher education. My father is education officer in 20 scale.  My father is earning about 7,000 dollars monthly. And my father also owns a huge land which is also our agricultural business. My parents are very much committed to sponsor my studies and they will not let me face any kind of problem during my studies. [sic]

4. During the scheduled hearing, it was discussed that this written evidence would indicate that his family had sources of income from multiple points and that there was no dire financial situation that led to the grounds for cancellation. The applicant added his father’s surgical and other treatment of his back injury by private specialists cost about AU$3,000; relatives had borrowed a large sum of money from his father while he was not overseeing the family’s finances; farm-based income was not always reliable; and tenants’ rents had to be renegotiated due to the decline in commodity prices. During the hearing, the Tribunal queried some of these responses as the hospital documents indicate that his father was in a publicly owned hospital; tenants would normally have had fixed rents; and none of these specific issues, such as a decline in tenants’ rent or farm-based income, were raised in the applicant’s earlier written statements. The Tribunal also notes that the applicant’s response to extended family members borrowing a large sum of money was vague and non-specific in detail. The applicant also changed his testimony when queried about his father being paid a generous public service wage when he claimed during the hearing that his father has now retired and allocates his pension to his tuition fees.  Despite the Tribunal expressing its credibility concerns during the hearing, the applicant continued to insist in these new specific claims whose ambiguity, belatedness and inconsistency invited the Tribunal to consider had been elaborately fabricated solely for the Tribunal to make a favourable decision in this review application. In the context of the Tribunal’s adverse credibility findings above and the inherently mutually unsupportive written and oral evidence, the Tribunal does not accept the explanation in the specific claim that his family did not have the financial capacity to pay the applicant’s tuition fees between September 2017 and December 2017 as claimed and finds that the additional explanations raised during the scheduled hearing were contrived to augment his otherwise weakly argued claims about his family lacking financial capacity.  Accordingly, it does not accept the applicant’s father was unable to afford medical costs without spending the applicant’s tuition fees as claimed.

5. The Tribunal has also considered the credibility of the applicant’s claims in light of the submitted emails and the applicant’s claim that he was unable to obtain a payment plan from his previous education provider, ECU, due to its lack of responsiveness as the reason for the delay in obtaining a new enrolment.   It is noted that on 4 February 2016, the applicant emailed ECU seeking deferment based on his urgent need to return to Pakistan due to his mother’s serious condition. However, as noted by the delegate, the applicant did not leave for Pakistan until April, indicating there was a lack of urgent deferment as outlined in the email. The applicant has argued that he was informed by his father that the health condition of his mother (or stepmother) had improved and that he travelled to Pakistan regardless. It was open to the applicant to re-engage with his studies but he did not. In the context of the Tribunal’s considerable credibility concerns, it does not accept the applicant provided his then education provider with a genuine excuse for deferment in early 2016. No emails were submitted regarding the second deferment about his stepmother’s passing as a reason for his deferment being granted.  The applicant also submitted an email indicating that he sought to enrol with the University of Tasmania in October 2017 – a few weeks after his non-enrolment at ECU. The emails indicate that the applicant was seeking to enrol in a Bachelor of Business. During the hearing, the applicant claimed he had been re-evaluating his business studies after struggling to complete a business degree yet he wished to persevere in the same degree with a different education provider, indicating he had not been undergoing a re-evaluation of educational and career priorities. The applicant also submitted emails indicating that he was attempting to resume his coursework with ECU between 14 November 2017 and 5 December 2017. The emails reveal that ECU emailed the applicant on 5 December 2017 noting that the applicant had not responded to an email of 16 November 2017 to resume his course. This would indicate that the applicant was not taking adequate or urgent steps to re-enrol at ECU, despite being given the opportunity to do so or that he had reasons for his non-enrolment. These emails specifically undermine the applicant’s claim he was unable to obtain a payment plan from his previous education provider, ECU, due to its lack of responsiveness as the reason for the delay in obtaining a new enrolment. There are also emails from August 2016 which indicate that the applicant applied unsuccessfully for hardship payments and that the applicant had provided medical documents to support the payment, while another email dated 12 October 2016, indicates that the applicant was asked to provide a fee payment by 20 October 2016. At no time did the applicant claim that he had difficulties in the second half of 2016 in paying his tuition fees or that he had health problems during this period of time, indicating that the applicant has intermittently had difficulties in meeting his tuition fee obligations for reasons unconnected to his written and oral claims.  In summary, these emails, while genuine, do not support the applicant’s claims as the evidence is generally inconsistent with his written and oral claims about the reasons for his deferment, his past emotional or psychological state, his change of course and his financial capacity in the past. Therefore, in the context of the Tribunal’s other adverse credibility findings, it finds the submitted emails were not supportive to the applicant’s critical claims about extenuating circumstances in the past or whether he is genuinely interested in community services educationally and vocationally. 

6. It should be noted that the Tribunal provided the applicant some time to discuss this particular credibility concern and how to address it by suspending the hearing and the applicant was invited to provide statements from both the applicant’s younger brother and father, as well as other documents to support his claims.

7. With these extensive and overall adverse credibility findings about fraudulent documents and the applicant’s circumstances in mind, the Tribunal makes the following findings regarding the matters as to why the visa should not remain cancelled.

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

8. According to the decision record, the delegate found that from the lack of study undertaken between the second lot of deferment and the period of non-enrolment from 22 September 2017 to 6 December 2017, the applicant’s purpose for remaining in Australia was not study.

9. As discussed in the hearing, the applicant did not complete much of his course work for a Bachelor of Business and he enrolled in a new degree for community services only after the issuing of the NOICC.  Along with his non-enrolment period these factors strongly indicate that the applicant’s purpose for remaining in Australia was not study.  The applicant, who had originally qualified for a medical course, argued that he had some doubts about completing a business degree since early 2017 which he pursued to better remunerate as a professional. He elaborated that he had an epiphany about committing himself to improving community services in Pakistan following the untimely death of his friend from a drug overdose. In this regard, the applicant provided verbosely evasive and vague answers as to how he would specifically contribute to Pakistani society outside of general motherhood statements.

10. Noting the extensive credibility findings above, the Tribunal has already made findings that it places little weight on the submitted emails to support the applicant’s claims he conscientiously tried to enrol in another diploma or degree or rigorously undertook re-enrolment to further avoid breaching condition 8202. The Tribunal does not accept the applicant has a genuine interest in completing a diploma or degree in community services or any other coursework and that his late enrolment in such a course was only disingenuously undertaken to persuade decision makers that he was a genuine student. The Tribunal accordingly finds there is no credible or reliable evidence before it about his purpose or that he would be able to uphold the conditions typically imposed on student visas. Therefore the Tribunal gives this little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

11. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a notable period of time. The Tribunal correspondingly considers this notable to the question of whether his visa should be reinstated. Given the reasons the applicant provided for this notable non-compliance were found not to be credible, the Tribunal gives this factor notable weight towards the visa being cancelled.

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

12. The delegate’s decision gave little weight to his consideration in favour of the applicant as he did not provide any specific response to the hardship that might be caused by having the visa remain cancelled.

13. During the scheduled hearing, the applicant emphasised that he wished to complete a qualification for his profession in community services as it was not taught in Pakistan. Based on the credibility findings above, the Tribunal does not accept this explanation about the applicant’s vocational ambitions. As the hardship is not a genuine hardship, the Tribunal places no weight on it in favour of the applicant.

14. The applicant claimed to be from a wealthy family and did not advance that he would face any financial hardship as a result of the cancellation.

15. The applicant claimed that if he were to return to Pakistan and his family without completing tertiary studies, the applicant will not have achieved anything and he will be considered a failure or a loser by himself and others which will exacerbate his psychological problems from anxiety and depression. The applicant admitted he had not seen a professional about these symptoms.  When the Tribunal asked if he could return to Pakistan to complete any degree for which he might qualify, the applicant said he could. The Tribunal finds that the applicant’s emotional and psychological state of mind in the past and into the foreseeable future was not supported by any evidence from a medical professional and the credibility of these claims was extensively undermined by the applicant’s lack of overall credibility. Nevertheless, the Tribunal accepts the applicant will face some but not a significant amount of emotional hardship if this visa were to remain cancelled and that it gives this factor little weight towards the visa not being cancelled.

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

16. In the context of the Tribunal’s extensive adverse credibility findings above, it does not accept any of the applicant’s reasons he was not enrolled, including that the tuition fees were not paid due to his father’s accepted medical treatment; that other family members interfered or borrowed the family money otherwise set aside for the applicant’s tuition fees;  that his stepmother died; that his best friend died from drug addiction; or that he had any emotional or psychological symptoms arising from sadness and distress. Neither does the Tribunal accept that the applicant was unable to obtain a payment plan from his previous education provider, ECU, due to its lack of responsiveness as the reason for the delay in obtaining a new enrolment or the breach of condition 8202(2) for such a notable period of time.   

17. As the Tribunal has made extensive findings that the applicant is not a reliable or credible witness in this regard, it finds there were no grounds for cancellation whereby there were extenuating circumstances beyond the applicant’s control.

    Past and present conduct of the visa holder towards the Department

18. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department and that he did respond to the issued NOICC. The Tribunal noted, however, that the applicant has provided a false affidavit and a misleading statement to the Department as part of his claim. Accordingly it gives this some weight in favour of the visa remaining cancelled.

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

19. Not relevant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

20. The Tribunal accepts that if the visa remains cancelled, the applicant, who does not have any children, would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant indicated that he could appeal to the federal courts but did not express any interest in other migration options. Based on the available migration options open to him, the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

21. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

22. When the Tribunal explicitly enquired if the applicant has a real chance of persecution in his home country, the applicant initially responded he may face difficulties. When the Tribunal pointed out that his written statement to the Tribunal said that his beloved Lahore was a peaceful and calm place, the applicant said he did not have any well-founded fears of persecution but did fear failure. Lahore can be a hazardous city in a country where persecution does exist. However based on the applicant’s accepted circumstances and that the applicant has not exhausted his migration options in this regard, the Tribunal places some but not a significant amount of, weight on this factor in favour of the visa not remaining cancelled. 

    Any other relevant matters

23. There is no evidence before the Tribunal that there are other relevant matters to consider and it gives this factor no weight, other than the applicant lacking in overall credibility and having very little regard for Australia’s migration laws. 

    Consideration of the discretion to cancel the visa

24. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

25. In this decision, the Tribunal has placed a considerable amount of adverse weight on the applicant being an unreliable witness with little overall credibility who submitted a fraudulently obtained affidavit which he originally claimed to be signed by his deceased stepmother, to the Department. This led to the Tribunal making overall adverse findings that the applicant’s explanations and other documentary evidence lacked credibility.  It was in this context that the Tribunal hence found that the applicant provided considerable mutually unsupportive oral and written evidence regarding the extenuating circumstances for his non-enrolment and the purposes of his studies if he were not to have his visa cancelled.  It followed therefore that the Tribunal does not accept the applicant is a genuine student who will uphold the conditions of any new student visa to be issued to him.  Accordingly, the applicant has demonstrated little regard towards Australia’s migration laws.  

26. Accordingly the Tribunal finds the factors in favour of the visa remaining cancelled overwhelmingly outweigh those few factors in favour of the applicant’s visa not being cancelled.

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

    DECISION

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

    Brendan Darcy
    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.