Ali (Migration)

Ali (Migration) [2023] AATA 3229 (6 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Haris Ali
CASE NUMBER:  2214298
HOME AFFAIRS REFERENCE(S):          BCC2021/1904027
MEMBER:David McCulloch
DATE:6 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 06 July 2023 at 8:36am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – ground for cancellation – convicted of an offence – Recklessly deal with proceeds of crime – conditional release order without conviction for two years – consideration of discretion – factual circumstances leading to the conviction – untruthfulness to police – knowing complicity in the criminal enterprise – applicant’s young age – no conviction recorded – failure to fully comply with payment plan – study history – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 January 2022 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 (Cth) (the Act).
The applicant is a citizen of Pakistan born in 1999. The visa that was cancelled was granted on 2 July 2019, with a stay period to 31 March 2023.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 25 November 2021. The applicant provided a response to the NOICC on 3 December 2021.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal affirmed the delegate’s decision on 9 May 2022. That decision was set aside by the Federal Circuit and Family Court of Australia on 15 September 2022. The Tribunal had access to a Police Facts Sheet which outlined the nature and circumstances of the crime committed by the applicant, which resulted in his conviction. The Tribunal referred to this in its decision. The Court held that there was a jurisdictional error because the Tribunal failed to put adverse information to the applicant, pursuant to s 359A of the Act. By not doing this, the applicant did not have an opportunity to comment or respond to the information which may have alleviated the Tribunal’s concerns with the seriousness of the offence and his oral evidence.
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 30 June 2023 at 9.30am to give evidence and present arguments. The hearing was held by video link using Microsoft Teams. This was because the applicant was in Melbourne and the Tribunal Member was in Sydney.
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
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)(g). 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?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
The delegate’s Decision Record, documents on the Department’s file and documents on the previous Tribunal’s file indicate that the applicant was convicted of the criminal charge of ‘Recklessly deal with proceeds of crime’ on 12 November 2021 at the Liverpool Local Court. He received a conditional release order, without a conviction for two years, commencing on 12 November 2021 and concluding on 11 November 2023. He was ordered to pay $21,800.
In the hearing the applicant acknowledged the determinations by the Court and the convictions. The applicant indicated that he did not contend the legal analysis by the delegate that there were convictions for the purpose of the Act, including given the relevant definitions in New South Wales and Commonwealth legislation.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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
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’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose − whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
The New South Wales Police Facts Sheet dated 6 June 2021 outlines the allegations leading to the charges against the applicant. A summary of the Facts Sheet follows.
The applicant was involved in cybercrimes against two elderly victims. The applicant and co-accused opened two St George Bank accounts, one in the applicant’s name. The applicant and co-accused conducted a Business Email Compromise (BEC) scam which is a method of fraud where cybercriminals impersonate businesses to trick individuals into transferring money and/ or sensitive information to the scammers.
An individual over the telephone ultimately persuaded the two victims, an elderly couple in their 70s and 80s, to deposit $22,000 and $21,800 into the respective accounts of the co-accused and the applicant. The victims thought that at least one tranche of the money transferred had been transferred mistakenly into their account but in fact it had been transferred from the victims’ savings accounts. Three days after the transfer to the applicant’s account, the applicant at separate bank branches withdrew $11,500 in cash and then at the other branch a further $9,500 in cash. The funds withdrawn were funded by the proceeds gained from the victims. The applicant did not make any further withdrawals or deposits to the account. The applicant’s account was closed on 7 August 2020. The bank provided a partial reimbursement to the victims with the victims being subject to a loss of $39,261.30, inclusive.
The applicant had physically attended the bank when the account had been opened.
The applicant was found and questioned by police. The applicant claimed that he opened the account to save money despite the fact that he has an everyday account with a different bank. The applicant denied knowing that the proceeds originated from crime. The applicant made the claim that the money was transferred into his account after his overseas friend ‘Farez’ sold a car in Australia. The applicant conceded that he withdrew a total of $21,000 from the accounts at two separate branches. The applicant indicated that he handed the $21,000 cash to the cousin of ‘Farez’ so that he could send the money overseas to ‘Farez’. When interviewed the applicant agreed that he was reckless in his actions. The applicant reiterated that he opened the account to assist in his efforts to save money and did not possess any other savings accounts.
In the NOICC response provided on 3 December 2021 the applicant’s representative provided the following response (not corrected for spelling or grammar; introduction and headings omitted):
Mr Ali is requesting that his visa is not cancelled due to compelling circumstances as explained in this letter.
Mr Ali says that he was charged with recklessly dealing with proceeds of a crime and was given a conditional release order without conviction for 2 years.
Mr Ali says that he never intended to receive proceeds of a crime, and that he was completely naïve in trusting a stranger who got him involved in the offence he was charged with. Mr Ali says that he befriended a person by the name of Farez and that Farez told him that he would be able to generate a good income by getting involved in a legal transaction. Mr Ali submits that Farez confirmed repeatedly that the transaction is legal, and that Mr Ali did not have to worry. Mr Ali says that he had no prior experience in dealing with business matter, but agreed to deal with Farez. However, Mr Ali say that as time progressed he realised that Farez’s ways of behaviour were not proper but he could not get out, as Farez threatened him and made demands on him.
Mr Ali says that he has been having mental health issues. He says that he came to Australia with the intention of completing his studies, and return to Pakistan, with the prospect of a higher employability due to his Australian qualifications. Mr Ali says that he realised once in Australia, that the course of studies was more demanding than originally anticipated, and that the assessment requirements were high than he expected. Mr Ali says that in Pakistan he had a sheltered life, often looking up to his parents and elders to guide him. Mr Ali says that in Australia he was forced to take on responsibilities of an adult all of a sudden, to learn to live alone, and perform well with his studies. He says the COVID-19 restrictions deteriorated his family in Pakistan to provide for him financially, and that the financial worries also burdened him along with his study commitments and adjustments issues to a new life in Australia. Mr Ali says due to these reasons he was often anxious and stressed and had a low mood. Mr Ali says these continuing health issues impacted on his behaviour, and sound judgement.
Mr Ali says despite his health issues he was somehow determined to focus on his studies, and has progressed towards completing them. Mr Ali says he is only 22 years of age, and accepts that he acted irresponsibly and recklessly. He says he is extremely apologetic and remorseful of his behaviour, and error of judgement in associating and dealing with wrong kind of people. However, he says that his actions were never intentional to defraud or engage in criminal activity. Mr Ali says that his sole purpose of staying in Australia was to complete his studies, and thereafter to return to Pakistan. Mr Ali says that he is deeply ashamed, that he brought himself to disrepute as well as his family.
Mr Ali says that the court decided to give him a conditional release order without conviction. He says he has no prior criminal convictions, and has been a law abiding person through-out his life. Mr Ali requests that considering his young age, and the potential for him to be rehabilitated to exercise better judgment in the future, and his eagerness to continue and complete his studies, that his Student (Subclass 500) visa is not cancelled.
The applicant also provided to the Department a letter from his psychologist, Dr Jon Dormand, from New Vision Psychology. The letter dated 7 September 2021 states that the applicant was experiencing a mild range of depression, severe range of anxiety and moderate range of stress. Additionally, the applicant was experiencing emotional lability, irritability, low mood, self-isolation, generalised anxiety and distress, reduced ability to focus or sustain attention, loss of interest in activities, irregular sleep patterns and low energy levels. The applicant’s psychologist recommended that he continue with his studies and keep a life as normal as possible as it can be beneficial for continued recovery. It was recommended that he be given the chance to finish his studies.
In addition to the response to the NOICC, the applicant submitted the following documents to the Tribunal in support of the initial application for review:
·A statutory declaration declared by Usama Mansha on 20 April 2022 in Victoria. The declaration speaks to the character of the applicant and that he is an active member of the Australian Pakistan community. The person declaring the statement states that they have known the applicant since they were children and that the applicant’s actions were out of character due to their mental health.
·A statutory declaration declared by Muhammad Jibran Shabbir Warraich on 20 April 2022 in New South Wales. The declaration speaks to the character of the applicant and that he is an active member of the Australian Pakistan community. The declaration speaks to the generous, kind, and humble character of the applicant and that consequently the applicant is not a threat to the Australian community.
·A psychology report from Dr Dormand, dated 20 April 2022. The report states that the applicant is in the extremely severe range for depression and anxiety and severe range for stress. Dr Dormand states that the applicant exhibits low mood, low motivation, social withdrawal, reduced ability to focus or sustain attention, loss of interest in activities, irregular sleep and eating patterns, low energy levels and generalised anxiety and distress. Dr Dormand also reports that the applicant’s mental health has declined since the September 2021 report. The report also states that the applicant should access ongoing psychological support. Dr Dormand recommends the applicant continue his studies as soon as possible to keep a normal life as possible.
·A Pakistan Police Character Certificate issued on 22 April 2022. The certificate records no criminal record found to date.
·A copy of a letter from Trinity Institute Australia dated 1 June 2021 which states that the applicant was enrolled in a Diploma of Business from 13 July 2020 to 16 April 2021.
The following submission was provided to the Tribunal on 20 April 2022 by the applicant’s representative (not corrected for spelling or grammar):
We are writing this submission on behalf of the applicant (Mr Haris Ali) in relation to the student visa (subclass 500) which was cancelled by “Honourable Department of Home Affairs” on 25/01/2022 by applying “section 116 of the Migration Act 1958”. However, a valid merits review application was filed within the specified timeframe with the “Honourable Administrative Appeals Tribunal (AAT) on 27/01/2022.
Brief History of the Applicant:
The applicant is a citizen of Pakistan and arrived in Australia on 30 July 2019 on a student visa for study purposes and commenced a course (University Foundation Studies) (016665E) leading to “Bachelor of Health Sciences (044779G) with an education provider (Western Sydney University) commencing from “28 June 2019 to 31 January 2023”. However, as the applicant arrived in Australia on 30 July 2019 (more than one month late) so the education provider changed the course commencement dates and issued new “Confirmation of Enrolments” (COEs) to the applicant in the same courses commencing from 25 October 2019 to 15 July 2023.
Although, after arriving in Australia, the applicant had to face mental health issues as it was the very first time when the applicant was residing away from his family. The applicant had to go through extreme anxiety and depression because the circumstances were entirely different than the applicant expected in relation to the massive cultural change, utterly different environment, loneliness which resulted him into becoming introvert and facing mental health conditions and due to these conditions, his studies started getting badly impacted and he was losing his concentration on the sole purpose for which he came to Australia.
On 24 February 2020, the education provider (Western Sydney University) cancelled the applicant’s “Confirmation of Enrolments” in the “Foundation Studies & Bachelor of Health Sciences” due to unsatisfactory attendance. However, as the applicant was going through his mental health issues so he could not attend or concentrate on the course properly. After the cancellation, the applicant became more stressful and he decided to go back to Pakistan to spend some time with his family which might have assisted to fix his mental health situation and come back with more determination and dedication for studies but in Mar 2020, the unprecedented COVID-19 Pandemic discovered, and the travel restrictions were being imposed by the “Australian Border Force (ABF) and he could not travel back.
Due to COVID-19 Pandemic, the applicant got more depressed and tensed because his close family members were getting infected and he was also worrying about his parents because at that time, the covid cases numbers were high and considering Pakistan still an underdeveloped country with a bad health system, these circumstances escalated his mental health issues further.
Afterwards, the applicant visited an education consultant which advised him to study “Diploma of Business (BSB50215)” from “Trinity Institute (Australia) which is a relatively an easier course and it will not put much pressure on your health and the applicant followed the advice of the education consultant and the applicant got enrolled and remained enrolled with Trinity Institute (Australia) from “13 July 2020 to 16 April 2021”. (Evidence Attached)
The applicant was under an impression that by enrolling into “Diploma of Business”, he will be able to maintain his visa “condition 8202” and even the education consultant did not advise him that he is still in breach of his student visa condition 8202.
Due to the concerning situation of COVID 19 Pandemic, where the economies of the big countries had a big hit, the financial situation of the applicant’s family also got impacted. The applicant was facing mental health issues, not being able to travel back due to travel restrictions, and even was not able to find a part-time job because the businesses in Australia remained closed or were running with reduced hours due to COVID-19. I explained the whole situation to the education provider “Trinity College” but they did not consider my situation and cancelled my enrolment.
On 8 July 2021, the applicant again obtained enrolment in “Certificate IV in Business (103683M)” with “Australian Harbour International College”. (Evidence Attached). At that time, the applicant started driving Uber and his financial and mental condition were getting better and the applicant’s family financial situation was also improving because they were not in lockdown and were again able to support him for his studies.
On 26 August 2021, the applicant received a “Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1958” and at that time, the applicant visited a “Migration Agent” who advised him that he is in a breach of visa condition, and he is required to obtain enrolment in “Bachelor’s Course” because the applicant’s student visa was granted in Higher Education Sector (AQF Level 7). The applicant acted promptly in response to the NOICC and also after knowing that he was in breach of condition 8202, he obtained enrolment in “Bachelor of Business (0101271). The course commencement dates for the Bachelor’s course were “31 January 2022 to 26 January 2025”. (Evidence Attached)
The applicant also provided a “Psychological Report from “Jon Dormand (Registered Psychologist)” dated 07 September 2021 which explained the mental health situation of the applicant which the department’s delegate gave consideration, accepted and did not cancel the visa saying that “the applicant is no longer in breach of condition 8202”.
Mental Health Services Provided in Pakistan:
The Honourable Department’s Delegate stated in the letter of cancellation that due to cancellation of the visa, the applicant might have to face mental health issues and it is likely that the applicant will have access to mental health services in Pakistan. On the contrary, the applicant belongs to a country like Pakistan which do not have an effective health system and even there are numerous weaknesses like poor governance, lack of access, unequal resources, poor quality of health information management system, corruption in health system and lack of trained staff. The applicant will have more access here as we have one of the finest health systems in place here in Australia. (Psychologist Report dated 20/04/2022 attached)
Prior to cancellation of his visa, the applicant’s mental health was getting better, and the applicant was getting back to normal and has started concentrating on his sole purpose (studying) of coming here. However, this visa cancellation has again impacted the applicant’s recovery.
Liverpool Local Court Matter (NSW):
The applicant was charged with recklessly dealing with proceeds ($21,800.00) of the crime under section 193B (3) of the Crimes Act 1900 NSW. The applicant has given a conditional release order for two years. However, the applicant has not been convicted as clearly stated in the “Honourable Court Order” dated 12 November 2021. (Evidence Attached)
In response to this matter, the applicant stated that he was never intended to receive proceeds of a crime. The applicant further stated that he befriended with a person named “Farez” (who is currently overseas) and Farez told him that he has sold a car and the selling amount of which will be deposited into “Mr Haris Ali’s account” and then Mr Ali withdrew the amount to send it overseas to “Farez”. The applicant also said that the Mr Farez assured him that the transaction is utterly legal, and the applicant is not required to worry about.
As stated by the applicant, the applicant told Mr Farez that he had no prior experience in dealing with these sorts of transactions. However, Mr Farez assured him that he will assist the applicant and further assured that the transactions will be legal, and the applicant will not be in breach of any rules or regulations of the country. However, Mr Farez deceived the applicant and get him involved in these sorts of transactions.
The applicant was a 22-year-old young boy who came to Australia alone, facing mental health issues, effected by COVID-19 Pandemic, and also accompanied by wrong person which took advantage of his mental health condition and involved him in a situation where he was never intended to be there. The applicant further stated that his mental health condition impacted his ability to make a sound judgement against these situations. The applicant has always been a law-abiding person in his home country and in Commonwealth of Australia and has never been involved in any sort of criminal activities. He has no prior convictions.
The applicant stated that he belongs to a noble family in Pakistan and in his entire family, no one has ever been involved in any sort of criminal matters and due to his unintentional act, he has brought shame to himself and to the family for which he is extremely remorseful and apologetic, and he promised himself that he will never let this happen again to him by anyone in future.
Payment Plan to Return Amount to Aggrieved Party:
A payment plan has been placed with the “Local Court of NSW” to return the amount ($21971.00 including court cost levy & victims support levy) to the aggrieved party. (Evidence Attached)
Conclusion:
We request the “Honourable Administrative Appeals Tribunal” to please vary or set aside the visa cancellation of the applicant and grant the applicant a student visa under subclass 500 because the applicant was never intended to involve himself in these sort of activities and also considering the applicant’s age and a long future ahead, please grant him an opportunity to rectify his mistakes and study “CRICOS Registered Course “Bachelor of Business” from “Canterbury Institute of Management”.
If the student visa will not be granted, his future will be jeopardised, and it will have a massive impact on his career and also on his family who have sent the applicant to get the qualification from World’s highly reputed education providers. Lastly, the circumstances were beyond the control of the applicant due to his mental health condition.

In the hearing, the Tribunal put to the applicant pursuant to the procedural requirements of s 359AA of the Act information from the New South Wales Police Facts Sheet dated 6 June 2021 outlining the allegations leading to the charges. The Tribunal indicated that the information is relevant because it indicates the applicant’s involvement in significant financial fraud. The alleged facts together with the conviction indicate that the applicant was at least involved and dealt recklessly with the proceeds of crime. The Tribunal indicated that the allegations and the Facts Sheet further indicate untruthfulness on the part of the applicant to police who indicated that the bank account was opened in order for the applicant to save money, when the evidence indicated that he had an account with another bank. The Tribunal put to the applicant that information is relevant because it defies credibility, as claimed to police, that the cash that he withdrew from the account was given by the applicant to a cousin of ‘Farez’ in Australia. It does not make sense that the money would not simply have been transferred into an account of the cousin given that it was a cousin who was to be transferring the money to ‘Farez’ in Pakistan.
The Tribunal indicated that the consequence of relying on the information could be to conclude untruthfulness by the applicant and knowing complicity in the criminal enterprise or at the very least recklessness. The factual matrix outlined in the Facts Sheet could result in the Tribunal considering including in light of the conviction that he has obviated his right to be in Australia on the privilege of holding a student visa.
The Tribunal indicated that it would in response consider the various written statements and submissions that have been provided. The applicant elected to respond orally.
In response, the applicant indicated that he had no knowledge that the transactions were unlawful until the bank contacted him after he had made the cash withdrawals. The applicant confirmed in the hearing that he had no suspicion until this point. The Tribunal pointed out to the applicant that this was inconsistent in written claims that he suspected unlawfulness but that ‘Farez’ applied pressure on him to proceed.
In response, the applicant then changed his evidence to indicate that at the point after he had made the first cash withdrawal he did suspect unlawfulness but that ‘Farez’ applied pressure and the applicant was worried that his family in Pakistan might be adversely affected.
The applicant did not explain the inconsistency in evidence in terms of when the applicant became aware of potential unlawfulness in the transactions.
The applicant in the hearing was not able to explain in any meaningful way the lack of rationality in the applicant setting up the bank account, withdrawing funds in cash and then giving that cash to the cousin when logically the money would not simply have been transferred in the first instance to the account of the cousin.
The applicant also did not explain in any meaningful way why he told the police that the bank account in his name had been opened to facilitate him saving money when he already had an account with another bank. In the hearing, the applicant suggested that the sole reason for opening a bank account was to receive the proceeds of sale of ‘Farez’s’ car.
The applicant in the hearing acknowledged that at least he had been reckless in terms of his part in the transactions.
It is adverse to the applicant that he acknowledges his recklessness. In mitigation, the Tribunal does take into account the young age of the applicant. However, untruthfulness to police about the rationale for setting up the bank account and plausibility issues in terms of large cash amounts being given to the cousin to transfer overseas, and inconsistency in the applicant’s evidence as to when he knew or suspected the transactions were unlawful, create credibility concerns for the Tribunal in being able to conclude that there are extenuating circumstances beyond the applicant’s control leading to the conviction on the basis that the applicant was young and naïve and did not know of the criminality of the enterprise. The Tribunal considers that the applicant was aware of the criminality and fraud involved, albeit accepting that the enterprise may have been principally driven by another individual.
The applicant’s knowing involvement in the criminal enterprise together with the significant monies defrauded result in the factual elements leading to the conviction being significantly adverse to the applicant in the exercise of the Tribunal’s discretion. In making this determination the Tribunal has taken into account the fact that the magistrate recorded no conviction.
The applicant indicated that there was a year-long payment plan for him to reimburse the $21,800 but in this time the applicant has only paid $3,000. The failure of the applicant to have abided by the core conditions in terms of the money that needed to be paid is adverse to the applicant and the exercise of the Tribunal’s discretion.
In terms of the applicant’s study history, he has provided evidence of successfully passing a Diploma of Leadership and Management on 16 February 2021. The applicant indicated that this had been a year-long course.
The applicant indicated that his initial studies in a University Foundation Studies course commenced in October 2019 but had been cancelled due to unsatisfactory attendance. Subsequently the applicant’s enrolment in a Bachelor of Health Science was cancelled due to non-commencement of studies. The applicant indicated that he sought the advice of the migration agent who advised him to enrol in a Diploma of Business and later a Certificate IV in Business, however, the applicant did not want to study business. The applicant did not complete or pass any of the units in these courses.
The Tribunal noted to the applicant that from the non-commencement of the Bachelor of Health Science on 24 February 2020 until his enrolment in the Bachelor of Business on 9 September 2021 the applicant had breached the condition on his visa that he be enrolled in the course at the same level as he initially enrolled in, namely a Bachelor’s degree (condition 8202). The applicant maintained that he was acting under the advice of his migration agent who did not inform him that the enrolment in the Diploma and Certificate courses would still leave him in breach of the visa conditions.
The applicant was made aware of this when enrolled in the Bachelor of Business on 9 September 2021. However, the applicant indicated that this enrolment was just to abide by the visa conditions and he had no desire to study business.
The Tribunal asked the applicant as to his intentions if the visa is reinstated. The applicant indicated that he would like to study a Bachelor of Nursing. He would thereafter return to Pakistan but could also consider job opportunities in Australia.
The Tribunal put to the applicant that it might have concerns as to his ability to undertake a course at the Bachelor level given that he did not originally in Australia even successfully complete the foundation studies. In response, the applicant indicated that a number of years have passed since his foundation studies suggesting that he has greater maturity and ability.
In terms of the applicant’s studies, it is in the applicant’s favour that he has successfully completed his Diploma of Leadership and Management. However, it is adverse to the applicant that the applicant made no substantial progress in studies for the remaining 15 months that he held the visa for the purpose of studying in Australia.
It is adverse to some degree that the applicant also breached condition 8202 in terms of not enrolling in the course at the Bachelor level from 24 February 2020 until 19 September 2021. However, this is not given significant adverse weight because the Tribunal is inclined to accept that the applicant was not given appropriate advice by his migration agent that enrolment in Diploma and Certificate courses did not meet visa requirements.
The Tribunal is prepared to accept that there is greater wisdom and maturity for the applicant as a result of the passage of time and that he has a genuine willingness and ability to progress with a Bachelor of Nursing. The Tribunal accepts that there would not be insignificant hardship if he is not able to progress with these studies. The applicant in the hearing indicated that there is pressure from family in Pakistan in terms of him successfully studying in Australia, which the Tribunal is inclined to accept.
It has been claimed that there would be hardship to the applicant if the visa remains cancelled in terms of inferior mental health treatment he would receive in Pakistan. In the hearing, the applicant indicated that his last mental health consultation with a psychiatrist was in February 2022. The applicant indicated that subsequent treatment had not been possible because of the cost of services and lack of government subsidies. The applicant indicated that he still suffers from some mental health issues due to his uncertain situation.
The Tribunal accepts that the applicant may receive inferior mental health treatment in Pakistan and that the applicant has provided evidence of some mental health conditions. The Tribunal has some doubts as to the severity of the applicant’s mental health conditions given the lack of any treatment over the last 15 months, notwithstanding potential monetary constraints. The Tribunal is prepared to accept some degree of hardship as a result of inferior mental health treatment in Pakistan. However, a student visa is not a de facto mechanism on its own for receiving medical treatment.
The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of limitations on his ability to apply for other visas onshore. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful non-citizen although it considers he would be eligible for a bridging visa to regularise his status while he makes arrangements to leave the country.
The applicant indicated that no children in Australia’s interests are affected by the cancellation. The applicant indicated that he does not fear persecution or significant harm on return to Pakistan although he does refer to family pressure.
The Tribunal takes into account statements in support of the applicant’s good character which are taken into account in his favour.
The above deals with relevant discretionary factors which the Tribunal weighs and are summarised as follows.
Significantly adverse to the applicant are the factual allegations leading to the conviction which indicate to the Tribunal he was knowingly complicit in a criminal enterprise. Having said that, the Tribunal makes allowances for the youth of the applicant, the fact that the magistrate recorded no conviction and that the applicant might not have been the principal driver of the criminal enterprise.
Adverse to the applicant is the fact that he only paid $3,000 of the restitution to the victims and has not, as he indicated in the hearing, made ongoing required payments.
In the applicant’s favour is the fact that he successfully completed one year of study during his time in Australia. Adverse to the applicant is his lack of any progress at all in the remaining 15 months of study while he held the visa.
The Tribunal weighs in the applicant’s favour the hardship that he would face as a result of not being able to progress in Australia with studies as desired and pressure from his family in Pakistan as a result of not making the study progress in Australia that they would have wished. The Tribunal accepts some hardship to the applicant as a result of inferior mental health services in Pakistan.
Adverse to the applicant but only to a limited degree is the fact that enrolment in the Diploma and Certificate courses left the applicant in breach of the requirements of condition 8202. The Tribunal is prepared to accept that the migration agent did not properly inform the applicant that these courses would leave him in breach of visa conditions.
The Tribunal balances discretionary factors adverse to the applicant and those in his favour. In consideration of all issues, the Tribunal is not satisfied that matters in his favour outweigh matters adverse to the applicant, most particularly what the Tribunal considers is the applicant’s knowing complicity in a significant fraud in circumstances where restitution has not been fully made to the victims.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

[2023] AATA 3229

6 July 2023

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