Akhlaq (Migration)

[2019] AATA 2419

Akhlaq (Migration) [2019] AATA 2419 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Akhlaq

CASE NUMBER:  1828219

HOME AFFAIRS REFERENCE(S):           BCC2018/1522127

MEMBER:Adrienne Millbank

DATE:16 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 April 2019 at 3:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – breach of condition – non-payment of tuition fees – not enrolled in full-time registered course – prolonged period of non-enrolment – insufficient funds to pay tuition fees –circumstances not beyond applicant’s control – applicant has no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 September 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a 38 year old Pakistani national. He has a Bachelor of Commerce from Panjab University in Pakistan, a Graduate Diploma of Management from the UK, and a Master of Business Administration (MBA) from the University of Wales obtained in 2011. He has a wife and three children in Pakistan, and worked there from 2011 to 2014 in the finance areas of several companies.

3. The applicant first arrived in Australia on 14 January 2014 on a Higher Education (Subclass 573) visa, enrolled in a Master of Professional Accounting (MPA) degree course at the University of the Southern Cross. He did not complete this degree. He was granted a Student (Subclass 500) visa on 3 October 2017, effective to 21 September 2018, based on his enrolment in an MBA at Holmes Institute. This enrolment was cancelled on 3 November 2017 for the reason of non-payment of tuition fees.

4. The Delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with a condition of his visa, condition 8202. The Delegate found that the applicant did not meet the requirement of subclause 8202(2)(a) to be enrolled in a full-time registered course.

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

6. The applicant appeared before the Tribunal on 3 April 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by phone.

8. A further written submission and supporting documents were provided following the hearing, on 8 April 2019.

9. 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

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition requires, at paragraph 8202(2)(a), that a visa holder who is not a defence, Foreign Affairs student, or secondary exchange student, must be enrolled in a full-time registered course.

12. The Delegate’s decision, a copy of which was provided to the Tribunal by the applicant, noted that the applicant’s Provider Registration and International Student Registration System (PRISMS) records show that the applicant’s enrolment in his MBA course was cancelled on 3 November 2017. The applicant acknowledged in his response of 9 August 2018 to the Department’s Notice of Intention to Consider Cancellation (NOICC) of 3 August 2018 that he was not enrolled in a full-time registered course. At hearing the applicant acknowledged that his last enrolment was cancelled on 3 November 2017, for the reason of non-payment of his tuition fees.

13. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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’.

15. Regarding the purpose of the applicant’s travel and stay in Australia, the Tribunal asked the applicant why he came to Australia to study another Masters Degree course, leaving his wife and three children in Pakistan, as he already had a Bachelor Degree in Commerce from Panjab University, a Graduate Diploma of Management and an MBA from the UK, and was employed in finance management positions in Pakistan. The applicant stated that he decided to do an MPA in Australia, and that he came with his family’s blessing. He advised that he struggled with the coursework because he found it difficult and was distracted when his father became acutely ill with prostate cancer. He stated that his father was unable to continue supporting him financially; other close family members whom he approached were unable to help him pay his tuition fees; and Holmes Institute, where he enrolled in the MBA course, did not approve his request for financial support.

16. The applicant provided a ‘Letter of Financial Support’ signed on 29 March 2019 from a person purporting to be the uncle of the applicant, from the USA. The letter advised that the applicant’s father is in the critical stage of prostate cancer; that his father’s illness affected the applicant ‘drastically’; and that he would, if required, pay all tuition and other expenses incurred by the applicant in Australia. Attached was a statement of transactions from this relative’s USA bank account, showing a balance on 21 March 2019 of USD 71,857. At hearing the applicant advised that the relative is a cousin of his father. The applicant confirmed that this relative has not as yet provided him with any financial assistance. He advised that he didn’t ask this relative for financial help before because he thought his closer relatives in Pakistan were going to help him.

17. The Tribunal raised with the applicant that he might not meet the financial requirements for a further Student visa, as the course fees alone for an MBA at Holmes Institute were AUD 23,700. The applicant advised that he could pay his fees semester by semester; that he would work; and that his relative’s support was a guarantee, or backup.

18. The Tribunal asked the applicant why he needed two Masters Degrees and why he enrolled in another MBA. The applicant advised that the course at Holmes was some months longer than the course he did at the University of Wales, and that the MBA he obtained in the UK in 2011 was dated. He stated that at 38 years of age he was at a disadvantage because he lacked recent experience in the financial management field, and his knowledge was dated. He acknowledged that he could update job-specific knowledge by taking courses in Pakistan, but argued that an Australian MBA from Holmes institute would be more highly valued by employers.

19. The applicant further advised that if his visa is restored, he might re-enrol in an MPA. He stated that he could succeed where he previously failed with this coursework, because he would apply himself to his studies. He argued, as noted, that an extra Masters degree, from an Australian institution, would provide him with a competitive edge in the Pakistani labour market.

20. Following the hearing, as noted, the applicant provided the Tribunal with a written submission in which he again claimed that two Masters Degrees and multiple degrees confers an advantage in the Pakistani job market. Attached were copies of job advertisements, including a small notice from the classified section of an English language Pakistani newspaper, stating:

    The Superior Group of colleges Sohawa campus GT Road district Jhelum, suerioredu.con.pk, qualification candidates: must have dual Masters Degree Marketing & Global Management age 30-45 years, salary 140000-175000.

21. The Tribunal notes that the applicant has expressed no intention of seeking a teaching position in Pakistan. None of the other examples indicated a requirement or preference for two masters degrees. The applicant claimed in his submission that some companies do not advertise their double degree requirements. The Tribunal accepts that multiple degree holders might get better opportunities and remuneration packages in Pakistan, as elsewhere, but does not accept on the evidence provided that an extra MBA from Holmes Institute in Australia will significantly enhance the applicant’s career or remuneration prospects.

22. When the Tribunal asked the applicant why he enrolled at Holmes Institute rather than Southern Cross University where he previously studied, he responded that the MBA course at Holmes was cheaper. As noted, no convincing evidence was provided that a Masters degree from Holmes Institute or any other course provider in Australia would enhance the applicant’s future employment prospects in Pakistan such as to justify the expense and time involved. The Tribunal is not satisfied that the applicant has a compelling need, in terms of his future career or employment prospects, to remain in Australia. As noted, the applicant already holds a Graduate Diploma (Management), Bachelor Degree (Commerce) and an MBA.

23. The Tribunal notes that the applicant was not enrolled in a registered course from 3 November 2017 to 7 August 2018, and that he enrolled in an MBA course at Holmes Institute only after receiving his NOICC. The Tribunal considers the applicant’s prolonged period of non-enrolment a significant breach of his visa condition 8202.  The Tribunal accepts that the applicant has engaged with the Department to the extent of responding to his NOICC. There is no information before the Tribunal to indicate that the applicant has not complied with other visa conditions.

24. The applicant advised the Tribunal that his father is now in a critical condition, in the end stages of prostate cancer. He confirmed that he has not returned to Pakistan since arriving in Australia on 14 January 2014 to see him. He advised that his wife and three children reside with his wife’s parents; that they stopped living with his parents because his wife found caring for his father too onerous. He advised that his mother has been caring for his father, but that she is ‘old’, over 60 years of age. He confirmed that he has not been able to support his family financially, and that he has not seen his wife and children in person in over five years. He advised that he would suffer emotional and psychological hardship if he has to return to Pakistan, however, for the reason that his wife expects him to return with more qualifications, and he would feel a failure if he goes back without another masters degree. 

25. The applicant acknowledged that he has worked in Pakistan in the finance areas of companies. As noted, the Tribunal does not accept that the applicant would suffer financial hardship if he has to return to Pakistan as the holder of only one MBA, from the University of Wales, rather than the holder of two, the second of which would be conferred by Holmes Institute in Brisbane. In terms of emotional and psychological hardship, while acknowledging that the applicant would prefer to return with another qualification, the Tribunal considers that the stress and depression the applicant has suffered in Australia, distressed by his father’s illness, failing his courses, without financial support apart from a guarantee from a distant relative who lives in the USA, and separated from his wife and children, would be alleviated by his return to his family in Pakistan.

26. The cancellation arose in the circumstances of the applicant failing in his coursework and having insufficient funds to pay his tuition fees. The Tribunal does not accept that these were circumstances beyond the applicant’s control. The Tribunal notes that all students are required to have access to sufficient funds to pay their tuition and support themselves in Australia, and that the applicant could, when his father became acutely ill and could no longer support him financially, have returned home to Pakistan.

27. There would be no consequential visa cancellations. Upon cancellation the applicant would become an unlawful non-citizen liable to be detained under s.189. There is no information before the Tribunal however to indicate that the applicant would not be eligible to apply for another Bridging Visa E to enable him to remain out of detention while organising his departure.

28. The applicant would be subject to s.48 of the Act, and have limited options to apply for further visas in Australia. The applicant would also be subject to Public Interest Criterion 4013, which could prevent him from satisfying the Schedule 2 criteria for another visa within three years from the date of cancellation of the visa. The Tribunal has considered that the applicant expressed a desire to remain in Australia to obtain another qualification and update his knowledge. As discussed above, the Tribunal considers that the applicant has sufficient qualifications to obtain employment in his chosen field in Pakistan, and could undertake job-specific training or further studies in Pakistan to update his knowledge. The Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.  The Tribunal does not find the imposition of this administrative sanction would impose hardship on the applicant beyond that intended by the policy.

29. The applicant confirmed at hearing that he has no reason to fear or otherwise not want to return to Pakistan, apart from fear of disappointing his wife and a desire to return as the holder of another MBA or an MPA.

30. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

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

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member