Akhtar (Migration)

[2019] AATA 5913

Akhtar (Migration) [2019] AATA 5913 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Choudhary Suleman Akhtar

CASE NUMBER:  1833984

HOME AFFAIRS REFERENCE(S):          BCC2018/2390940

MEMBER:Christine Kannis

DATE:23 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 August 2019 at 7:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – non-study period of nine months – several course enrolments cancelled – non-commencement of studies – unsatisfactory course progress – medical issues – death of friend – mental health issues – car accident – factors beyond applicant’s control – continuously attempted to re-enrol – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 19 August 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

6. The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records and correspondence from the Edith Cowan College to him that was provided to the Department. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. Relevant to this case, these include the ground set out in s.116(1)(fa). 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?

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

12. On 12 September 2014 the applicant was granted a Subclass 573 visa to study a course package leading to a Bachelor of Engineering (Civil) Honours at Edith Cowan University.

13. PRISMS shows the applicant has been enrolled in several Bachelor courses and Diploma courses and that his enrolments have been cancelled for non-commencement of studies or due to unsatisfactory course progress. PRISMS also shows he has finished three Diploma courses however they were not successfully completed.

14. On 23 October 2018 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he is not and is not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:

    ·He had not followed the study plan he proposed in his Subclass 573 application.

    ·Contact with his education provider confirmed that he made several attempts to complete a course at their institute and he had not successfully completed the Diploma of Science (Engineering) or Diploma of Science (Health Studies). Therefore since his entry to Australia he has not successfully completed a course of study.

    ·He sought a deferral for a Bachelor of Engineering (Civil) Honours which was approved from 29 February 2016 to 25 July 2016. He did not re-commence his principal course of study.

    ·He is currently studying at the Vocational Education and Training level in a Certificate III Painting and Decorating and he has no valid enrolments in a Higher Education Sector course. Therefore he is not enrolled in a course of study at the level required for the Subclass 573 visa.

    ·He has an extensive non-study period of nine months and 29 days (19 July 2017 and 18 May 2018).

15. On 5 November 2018 the applicant responded to the NOICC and provided the following information:

    ·When he entered Australia he was misguided by students and made to believe he must obtain enrolment immediately.

    ·In January 2015 he passed all his units of study.

    ·In February 2015 he enrolled in the next three units but half way through the trimester he started feeling back pain due to a change in weather conditions from hot to cold. The back pain was a consequence of a 14 feet fall from a roof in 2014 which occurred before he came to Australia. He was on strong medication and felt homesick and alone and this led to him missing classes and assignments and he failed two of the three units.

    ·He applied for a deferral of studies in the third trimester due to his medical condition and stress. He continued with his study in the fourth trimester but failed two units.

    ·In early 2016 he departed Australia to visit his family for a few weeks.

    ·In the following semester he enrolled in his studies but was involved in a car accident in May 2016 in Australia. He suffered eyelid laceration and the accident put pressure on his physical and mental health. With no help in managing house duties he became depressed and passed only two units in the six months.

    ·He returned to Pakistan in early 2017 for five weeks.

    ·On his return to Australia he successfully completed one unit in the 10th week of the trimester and was preparing to sit for exams.

    ·His close friend was killed in a car accident and he did not sit his exams because he helped repatriate his friend’s body to Pakistan. He applied for another deferral but it was refused. This exacerbated his mental state.

    ·His friends told him to see a psychiatrist but he did not seek medical assistance.

    ·He has tried his best to complete his Diploma of Science (Engineering) and enrolled in the same units several times. He passed one unit after several attempts.

    ·He spoke to his education provider (PIBT) about re-enrolment but he was unable to re-enrol in one unit (Programming Fundamentals) due to a course change.

    ·He paid a partial fee on 7 July 2017 however the college cancelled his enrolment.

    ·His college fees were nearly $20,000 and his parents had paid over $50,000 for the Diploma course.

    ·PIBT did not provide him with the units of Calculus and Electrical Engineering 1B.

    ·He had no choice but to leave his education provider in July 2017.

    ·He approached ECU about direct admission into a Bachelor of Civil Engineering for the July 2017 or February 2018 intake however he was advised that an offer was conditional on completion of the Diploma course.

    ·He made enquires of Murdoch University, Curtin University and the University of Western Australia however their fees were out of his budget and he did not meet the GTE requirements. He was advised to move to Melbourne or Sydney and enrol at TAFE in a Bachelor of Engineering. He was not prepared to leave Perth.

    ·ECU kept deferring his Bachelor of Engineering enrolment because he did not meet the entry requirements.

    ·He contacted Perth College of Business and Technology and was advised that they offered a Painting and Decorating course which would commence in November/December 2017. He also contacted Stott’s College who advised that they would enrol him in a Bachelor of Business once he was enrolled in the initial course. He had to wait for the Painting and Decorating course to be given CRICOS approval. This took some time and he was not enrolled until May 2018. Due to this extensive wait he had a non-study gap of nine months. It appears the course provider did not honestly explain that the course was not ready to be delivered.

    ·His family are expecting him to complete a qualification.

    ·He is willing to apply for another student visa to continue at a vocational education level.

    ·He is currently undertaking a two year Certificate III in Painting and Decorating and intends to finish the course and either undertake a Bachelor of Business or finish trade certification and move to Saudi Arabia to establish his own business chain.

    ·The circumstances that impacted his study were factors beyond his control.

16. At the time of responding to the NOICC the applicant provided documents which included but were not limited to medical certificates and correspondence from Edith Cowan College.

17. Prior to the hearing the applicant’s representative provided a written submission and additional documentation which included but was not limited to a letter from the applicant dated 13 August 2019 and a CoE. The written submission included the following:

    ·The applicant arrived in Australia in September 2014 to complete Diploma of Engineering Science and Bachelor of Engineering (Civil) Honours however he could not make substantial progress or complete the course and after numerous attempts to complete some of subjects within the degree itself until July 2017. There have been numerous factors beyond the applicant’s control in order to incapacitate the course progression which include the following:

    oCourse progressions within Diploma course itself

    oMedical issues

    oDeath of close friend

    oStress and anxiety due to multiple factors

    oDowngrading the course from Higher Education pathway to VET level to gain success within the studies

    ·When the applicant couldn’t complete the Diploma of Engineering course he was advised to change his pathway. He consulted his family and decided to complete something achievable. He approached Perth College of Business and Technology in November 2017 to do something related to Building and Construction and was advised to wait a few weeks as the college was seeking approval from ASQA for a Painting and Decorating course however it took several months. Due to false representations about the commencement of the course the gap existed until May 2018. There have also been other issues recently and the college failed to deliver the course due to State legislation in February 2019 and the applicant ended up transferring to a Certificate III in Wall and Floor Tiling in March 2019.

    ·Since the cancellation of the visa the applicant has obtained a Bridging Visa and maintained his enrolment and course progress.

    ·The applicant has spent a significant amount of money to complete a Diploma of Engineering and subsequently to complete Painting and Decorating or Tiling course. If the visa remained cancelled he will not be able to achieve any qualifications from Australia, resulting in a significant loss of the investment made by his parents.

    ·When the applicant arrived in Australia he was aged 19 and had limited knowledge about the career expectations, commitment and visa requirements. He is now 24 and has set his career and future direction. If his visa remained cancelled, he would not achieve anything from Australia and his career would be spoiled.

    ·The applicant has accepted that there was non-compliance however he has presented arguable considerations for himself to be a genuine student with the consequence of the factors beyond his control. His intent was always to finish the course but inability of completion of Diploma doesn’t mean that he is a non-genuine student.

    ·If the visa remains cancelled the applicant has limited options to apply for further visas in Australia. He would be barred from travelling in and out of Australia, depriving his freedom and inability to see his family members. As he is seeking his career in Saudi Arabia he will not be able to complete the course and he may have not been granted his visa/s to other countries. That will leave the review applicant is serious legal situation and his career may be impacted.  

18. The letter from the applicant provided the following information:

    ·He is currently enrolled in a Certificate III in Wall and Floor Tiling. He started studying Painting and Decorating in April 2018 however after nearly a year of study he had to change courses due to government decisions about international students.

    ·His uncle in Saudi Arabia employs 20 people in the construction industry and has offered to settle him there after he completes his qualification.

    ·His original plan had been to study Engineering and obtain his qualification by 2019 and join his uncle in Saudi Arabia.

    ·When he came to Australia he was alone and fell sick due to a back injury. He obtained a medical certificate and had a trimester away from his study.

    ·He did not perform well in later trimesters and his parents suggested that he return to Pakistan for care and to take a rest.

    ·He returned to Australia in good health and enrolled in units but before the exam he had a car accident. He was hospitalised for a couple of days and could not see properly out of his eye for three weeks. He could not come out of the trauma and poor performance for the trimester was the result.

    ·This was the second time an accident impacted on his study. And he still passed seven out of ten units leading to a diploma.

    ·He found it difficult to pass two units (Electrical Engineering and Programming Fundamentals). He kept trying to pass them but it wasn’t working.  In mid-2017, five days before his exams, he received the news that his good friend had died in a car accident in Australia. This left him in mental shock and he did not appear at the exams and applied to withdraw from the units and for a deferral for the next term. These were rejected because of his two previous accidents which had delayed his studies. The university terminated his enrolment and excluded him from the course and said he was not competent to complete the course on time. This was devastating for him and his father. It took him six months to get over the disappointment, hopelessness and stress.

    ·After that he explored many options in his related industry including a construction management course at TAFE and a Bachelor of Business for which enrolment was closed and wasn’t opening until July 2018. He then came to know of the Painting and Decorating course and finally found himself at peace. He was working hard and passing units but a technical matter between state and college forced him to change his course to Wall and Floor Tiling. He will finish this course in April 2020 and after attaining his Certificate III he will go to Pakistan for six months and then move to Saudi Arabia and his Australian qualification and his uncle’s help will open opportunities for him. It is important for him to have a skill at his age because he wants to marry in the next couple of years and also so he can support his parents and family.

19. The applicant told the Tribunal that from shortly after he arrived in Australia in September 2014 until July 2017 he repeatedly attempted to study units in Diploma courses but was generally unsuccessful. Although he passed a few units he failed most units. He was homesick and suffered back pain in 2015 and he said these issues may have contributed to his study failures but conceded they were not the complete reason. The applicant’s evidence was that the study was too difficult. His failures caused him to lose confidence and he applied for deferrals on two occasions to take a rest.

20. The applicant referred to other events which impacted on his ability to study and successfully complete a course. These included his involvement in a car accident in May 2016 and the death of his friend in May 2017. Whilst the Tribunal accepts that these events are likely to have caused the applicant distress, there was no evidence to substantiate the impact that the events had on his ability to study apart from one certification that he was unfit to sit examinations from 1 June 2017 to 2 June 2017.

21. The delegate referred to the applicant having a study gap from 19 July 2017 to 18 May 2018. The applicant did not dispute that he was not studying during this period however he said he made numerous and consistent attempts to enrol in a course and approached Edith Cowan University and other universities but was told that he did not meet the entry requirements, that the offers were closed or that the intake was several months away.  The Tribunal accepted the applicant’s evidence that he continued to attempt to obtain a CoE after his enrolment was cancelled in July 2017 for poor academic performance which appears to have included his failure to sit exams following the death of his friend.

22. In late 2017 he decided to undertake study in a Certificate III in Painting and Decorating. Initially the course was to commence in November or December 2017 however it was not given CRICOS approval at the expected time and the applicant did not commence study until May 2018.  

23. The Tribunal discussed the applicant’s study record with him. The Tribunal noted to the applicant that the delegate has contended that he had an obligation to study at Higher Education Sector level and that he had not done so and that as at the date of the delegate’s decision he was not enrolled in a Higher Education Sector level course. The applicant did not dispute this and said he was continually trying to obtain a CoE and when he obtained the CoE for the Certificate III in Painting and Decorating he intended to continue to higher studies, namely a Bachelor of Business. He said he was unable to obtain a letter of offer for a Bachelor of Business. The applicant said he although he was not able to pass the units required for a Bachelor of Engineering (Civil) Honours, he believed he would be able to successfully complete a Bachelor of Business.

1. The applicant told the Tribunal that after studying the Certificate III in Painting and Decorating for 12 months the course was changed to a Certificate III in Wall and Floor Tiling. He said he will finish the course in April 2020 after which he will return to Pakistan and it is likely he will move to Saudi Arabia at some time in the future. A CoE for a Certificate III in Wall and Floor Tiling was provided. The CoE indicates the course ends on 15 November 2020 however the applicant will finish on an earlier date because of the units he passed in the Certificate III in Painting and Decorating. A Statement of Attainment dated 31 July 2019 which showed the applicant had passed several units in the Certificate III in Painting and Decorating was provided.

2. The purpose of the applicant’s visa was to allow him to study at a Higher Education Sector level. For a significant period of time the applicant did not study and at hearing he did not dispute that there was a nine month gap in his study. He claims he was unable to study because he could not obtain a CoE during this period. The reasons for this included his poor academic progress and a delay in CRICOS course approval. The Tribunal finds the information in PRISMS with respect to the applicant’s unsatisfactory course progress and the gap in his study and is strong evidence that he is not a genuine student. The Tribunal is also concerned that the applicant was never able to study at a higher level as required by his Subclass 573 visa.

3. Having regard to the applicant’s study history, his poor academic progress and lack of enrolment over a substantial period, the Tribunal finds that the applicant is not a genuine student. The Tribunal finds that the ground for cancellation in s.116(1)(fa)(i) 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

4. 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’.

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

5. The applicant told the Tribunal his purpose in coming to Australia was to study at the Higher Education Sector level. He attempted study in the course package leading to a Bachelor of Engineering (Civil) Honours however he has not successfully completed a course of study.

6. The Tribunal has found that there was a nine month gap in his study after which he commenced study at the Vocational Education and Training level. At the time the NOICC issued the applicant had been successfully studying a course at the Vocational Education and Training level for nearly six months.

7. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.

   Whether the visa holder has a compelling need to travel to or remain in Australia

8. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he needs to obtain a skill so that he does not have to rely on his parents to financially support him.

9. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled. The absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with the visa conditions

10. The applicant was granted a Higher Education Sector Subclass 573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in a Higher Education Sector CRICOS registered course. He was not enrolled in any CRICOS registered course for a period of nine months whilst he has remained in Australia on a visa which is for the purpose of study. He was not studying for a significant period of time.

11. The applicant acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period. The Tribunal notes that the non-compliance with enrolment in a registered course at the appropriate level occurred over a substantial period of time and places weight upon this.

12. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.

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

13. Regarding the potential hardship which may result from cancellation of the visa, the applicant said that his main concern is his family. He said his father is 60 and he cannot tell him that he is unable to financially support himself.

14. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his family however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

15. The applicant’s visa was cancelled because of his unsatisfactory course progress and nine month study gap.

16. The Tribunal accepts that the applicant was very young at the time he applied for the Subclass 573 visa and that he had high expectations of his ability to successfully complete the Higher Education Sector course. During the hearing the applicant presented as a credible witness and the Tribunal accepts that he continued to attempt study at a level which was beyond his ability up until June 2017. Although he referred to his back injury, a car accident and the death of a friend the applicant’s evidence at hearing was essentially that the courses he attempted were too difficult.

17. The Tribunal accepts the applicant’s evidence that he made continued attempts to obtain a CoE including a CoE for a Higher Education Sector course during the nine month study gap. The Tribunal accepts that during part of the nine month period the applicant was awaiting the commencement of a course and that the start date was delayed due to a CRICOS course approval delay. The Tribunal accepts that the study gap was extended by a few months due to circumstances beyond the applicant’s control and gives this some weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

18. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

19. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

20. There is no evidence that there would be consequential cancellations in this case.

    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

    The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal accepts that the applicant wishes to complete the Certificate III in Wall and Floor Tiling in Australia after which he will return to Pakistan.  The Tribunal acknowledges the difficulty a three-year exclusion period would cause and gives this some weight 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

21. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

22. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

23. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

24. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal has found that the applicant is not a genuine student. Despite this the Tribunal accepts that the applicant continued to attempt to study and obtain CoEs in Higher Education Sector courses and eventually in a Vocational Education and Training course.  He had been successfully studying at this level for several months at the time his visa was cancelled. The applicant said he will complete this course in April 2020 after which he will depart Australia. The Tribunal has also taken into account that the study gap period was due in part to circumstances beyond the applicant’s control. The Tribunal has placed weight on the mandatory legal consequence of a three year exclusion period. The Tribunal also takes into account the applicant’s young age when he arrived in Australia and his high expectations of his ability to successfully study the Higher Education Sector course in which he was enrolled.  

25. The Tribunal recognises that the cancellation of the visa is a significant matter.  This matter was finely balanced however considering the circumstances as a whole  the Tribunal concludes that the visa should not be cancelled.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.