Ahmed (Migration)

[2019] AATA 4124

Ahmed (Migration) [2019] AATA 4124 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waqas Ahmed

CASE NUMBER:  1730674

HOME AFFAIRS REFERENCE(S):           BCC2017/3515331

MEMBER:Lisa Hannon

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 10:57am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in course – unsatisfactory course progress – no attempt to find another course – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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 had not complied with subclause 8202(2)(a) of condition 8202, finding that the applicant had not been enrolled in a full time registered course of study since 19 April 2018.

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 before the Tribunal on 9 September 2019, via video link from Sydney, to give evidence and present arguments.  He did not file or produce any additional documentation for consideration by the Tribunal.

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)

   ·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).

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

9. The Decision recorded that a Notice of Intention to Consider Cancellation was sent to the applicant on 2 November 2017 (NOICC).  The Decision sets out that the applicant at the time of the NOICC was not enrolled in full time registered course of study, and had not been so enrolled since 19 April 2017.

10. The applicant did not respond to the NOICC, nor has he provided any further information whatsoever to the Department, or to the Tribunal.

11. The applicant frankly conceded that he had not been enrolled since 19 April 2019. 

12. On the basis of the evidence before it the Tribunal finds that the Applicant has not been enrolled in a full-time registered course of study since 19 April 2017.  The Tribunal finds that the applicant breached condition 8202.  As that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, in considering whether to exercise the discretion, the Tribunal has had regard to the relevant circumstances of this case, including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

15. There is no evidence before the Tribunal to suggest that the applicant’s purpose in travelling to and staying in Australia was not to study, and has given this factor some limited weight in favour of not cancelling his student visa.

    The extent of compliance with visa conditions

16. The Tribunal has taken into account the fact that the applicant breached a condition of his visa.  The applicant did not responded to the NOICC, or provided the Department or this Tribunal with any evidence or information about the extent of the breach, or the reason why it occurred.  He told the Tribunal that he only became aware of the NOICC on the day that it was due.  Nevertheless, he did not contact the Department after having become aware of it.

17. Thus, it appears that the applicant was not enrolled in a registered course from 19 April 2017 to 28 November 2017, a period of over 7 months.

18. The Tribunal considers this to be a significant period and gives it substantial weight in favour of cancellation of the applicant’s visa.

19. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions; the Tribunal gives that some limited weight in the applicant’s favour.

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

20. The applicant did not respond to the NOICC, or provide the Department or this Tribunal with any evidence or information about the degree of hardship that might be caused. 

21. The applicant arrived in Australia in 2013.  He told the Tribunal that after successfully completing a Certificate IV and a Diploma of Accounting, he commenced a bachelors degree in accounting at a new institution.  He told the Tribunal that he failed every subject in his first semester.  He said that he had not been allocated the subject days and times that he had wanted, and that that was the reason he could not concentrate in class, and then failed.  He said that the college asked him to improve his grades, failing which it would cancel his certificate of enrolment, because his progress had not been satisfactory.  The applicant reported that he had asked the college for a “release letter”, but that his request was not approved.  He has not looked into other courses, and sought to wait for the Tribunal’s decision, notwithstanding his apparent familiarity with the bridging visa granted to him upon making this application.  As a result, the applicant has been living with friends, and neither studying, nor apparently working, for nearly two and a half years.  He has not made any enquiry of the Tribunal since his application was filed in December 2017, and did not file any supporting materials with it.

22. The applicant told the Tribunal that as a result of the failed semester, he became depressed.  He has not told his parents that he has not been studying for over two years, and expects that they will be very angry with him if they find out.  He does not know what they will do, but he expects that they will not financially support him.  He will be required to live in their home, but without a bachelors degree he will be considered something of an outcast.  When asked about the value of his existing qualifications, he said that even people with masters degrees in accounting cannot get jobs in his home country, and he does not think he will be employed as an accountant.  He said that he did not have any other skills or trade.  He does not know what will happen to him

23. The applicant’s family have continued to provide financial support to him as a student. He does not have family or dependents in Australia.

24. In response to further questions from the Tribunal, the applicant said that he had not visited a doctor, psychologist, or counsellor about his feelings of depression, either at the point that his studies fell apart, or at any point in the intervening nearly 30 months.

25. The Tribunal accepts that some hardship and emotional distress may follow if the applicant’s student visa is cancelled.  However, beyond that, in the absence of any medical evidence, the Tribunal is unable to make any finding about the extent of the applicant’s reported depression, and whether it reaches a clinical level. 

26. Accordingly, the Tribunal has given the applicant’s prospective hardship and emotional distress only limited weight in the applicant’s favour.

    The circumstances in which ground of cancellation arose, including extenuating circumstances

27. The applicant did not respond to the NOICC, or provided the Department any evidence or information about the circumstances in which this ground for cancellation arose. 

28. The applicant told the Tribunal about the circumstances in which his enrolment was cancelled, which are described in [21], above. 

29. The Tribunal considers, on the evidence before it, that there are not any extenuating circumstances, and has given this no weight in his favour.

    The past and present behaviour of the visa holder towards the department

30. There is no evidence before the Tribunal to indicate that the applicant has been untruthful or uncooperative in his dealings with the Department.  The Tribunal gives this some limited weight 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

31. The cancellation of the applicant’s visa will result in him being unable to be granted some temporary visas, including visitor and student visas, for a three year period (condition 4013).  The applicant will also be prevented from applying for many permanent visas onshore. 

32. The applicant currently holds a bridging visa that allows him to remain lawfully in Australia. 

33. The Tribunal gives this only limited weight in favour of the visa not being cancelled.

    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

34. The applicant has not raised any matters that indicate that this is an issue and the Tribunal finds these factors are not relevant in the circumstances of the applicant.

    Any other relevant matters.

35. There are no other relevant matters,

36. Having regard to the matters set out above, whilst the Tribunal accepts that the applicant came to Australia intending to study in 2013, that position changed.  The Tribunal gives significant weight to the applicant’s conduct with respect to further studies in the period since April 2017.  The applicant did not adduce any objective evidence that might allow the Tribunal to conclude that there was a medical reason for the collapse of his studies, or his conduct thereafter, and whilst the Tribunal accepts that the applicant had feelings of disappointment and depression after failing a semester of his bachelor’s degree, that does not wholly explain his conduct over the past nearly 30 months.

37. The evidence on the whole suggests that the applicant does not intend to stay in temporarily in Australia for the purposes of completing his studies.  The Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Lisa Hannon
    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.