Ali (Migration)

[2023] AATA 4352

Ali (Migration) [2023] AATA 4352 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Noman Ali

REPRESENTATIVE:  Mr Shahzaib Hassan (MARN: 1801183)

CASE NUMBER:  2214188

HOME AFFAIRS REFERENCE(S):          BCC2022/1862584 

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION:  1 December 2023 at 11:15 am (NSW time)

DATE OF WRITTEN REASONS:              12 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 January 2024 at 1:16pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family bereavement – mental health issues – relationship breakdown – college denied the applicant a release –– decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202

WRITTEN STATEMENT OF REASONS FOR ORAL DECISION

Introductory

1. This is an application to review a decision made by a delegate of the Minister for Home Affairs who, on 19 September 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 116(1)(b) of the Migration Act 1958 (the Act).

2. The visa, which had been granted to the applicant on 20 May 2020, was subject to condition 8202(2)(a). The cancellation was based on a breach of this condition as, according to the evidence before the delegate in the form of the PRISMS record, the applicant had not been enrolled in a full-time registered course of study during the period from 13 April 2021 to 19 July 2022, a period of about 15 months.

3. At the conclusion of the hearing on 1 December 2023, after taking oral evidence from the applicant for a period of about 1 hour and 30 minutes, I made an oral decision to affirm the delegate’s decision to cancel the visa and indicated to the applicant that, in view of the time constraints, I would give written reasons later.

4. The Outcome document which records my oral decision was duly provided to him via his Registered Migration Agent, Mr Shahzaib Hassan. A copy of this document was also sent to the Department on the same date together with a letter which outlined the current procedural position.

5. More recently the applicant has filed an appeal to the Federal Circuit Court of Australia.

6. What follows are the written reasons foreshadowed at the hearing.

   Procedural aspects in the review  

7. The video hearing was initially scheduled to take place on 29 September 2023 but was later re-scheduled to a date in October for reasons unrelated to the applicant.

8. On 19 September 2023 the agent informed the Tribunal in an email that, while the initial hearing date suited him the re-scheduled date did not because he (the agent) would be overseas until 26 November and would have only limited access to the internet. Airline tickets were provided to support his position. He requested the Tribunal to re-schedule the hearing to a date after his return.

9. Later on the same date, 19 September, the Tribunal informed the agent in a letter that his request to further postpone the hearing had been granted and, on 19 October, a fresh Hearing Invitation was sent to him for a hearing on 1 December. In the letter the Tribunal requested the applicant to provide all documents on which he intended to rely by 24 November 2023.

   Documentary aspects, the eventual hearing and credibility aspects

10. On 1 December 2023 at about 7 am the agent sent a bundle of documents to the Tribunal under cover of an email in support of the applicant’s case. Up to this point he had provided, on 21 September, only one such document namely a COE for a Graduate Diploma of Management (Learning) at the Campbell Institute, a record generated by the provider on 19 July 2022.

11. As will be seen the other documents which he belatedly provided, with one or two exceptions, consisted of copies of the material which he had provided to the delegate in response to the NOICC, including the agent’s submission. In the email the agent expressed regret at the late submission of these additional documents saying that he had just returned from overseas, which I assume to be a reference to 26 November as there is nothing in the email to suggest otherwise. No up-dating submission was provided with these additional documents.

12. As it happened, the applicant participated in the video hearing on 1 December without assistance from the agent. Nor did he (the agent) offer any explanation to the Tribunal for his eventual non-appearance in circumstances where the re-scheduled hearing had been postponed at his request to accommodate his travel arrangements.

13. The applicant, who was born in Pakistan but who has been in Australia under various student visas since June 2014, unsurprisingly gave his oral evidence in English without difficulty. His evidence was given in response to questions from me.

14. Whilst I am prepared to accept parts of his oral evidence there are important aspects of it which I simply cannot accept without other more reliable evidence to corroborate him. Whilst corroboration is of course not a requirement in these cases the reality is that many of the agent’s submissions in this case are supported by nothing more than self-serving assertions from an applicant who obviously has much to gain by making them. In this case the problem has been exacerbated by the fact that he did not provide a written statement in support of his review case preferring instead to rely, apart from his oral evidence, on the written submission from his agent mentioned earlier, on the other documents which the agent had provided to the delegate in July 2022, now more than 18 months ago, and on some additional academic records not previously provided.

15. To make matters worse, many of the agent’s submissions are simply not supported by the evidence led in the review, are impossible to reconcile with the objective features of the case or are implausible or hyperbolic in form.

16. In these cases, it is not the Tribunal’s statutory function to conduct a roving enquiry with a view to filling in gaps in an applicant’s presented case or to rectify evidentiary or other deficiencies.

17. In addition to the Department’s file and the applicant’s documentary case on the review I have seen an undated PRISMS record for him and his Movements Details. Having discussed most of the information in these documents with him at the hearing none of it would appear to be controversial.

    An overview of the review case

18. Put shortly, the applicant’s case as outlined in the agent’s submission focuses on the circumstances in which the breach of condition 8202 occurred and on his asserted desire to now engage in studies in the civil construction field, a package which has come from nowhere and which had, until recently, a projected end date in July 2026. This may now be pushed back even further given that, on his review case, he has recently enrolled in an Advanced Diploma of Civil Construction and Design at the Australian Health and Management Institute (AHMI) which has an end date of January 2025. Given that the other course which currently remains in his program, namely a Graduate Diploma in Management (Learning) at the Campbell Institute, has a duration of some 2 years the projected end date for his studies here is apparently early in 2027.

19. Although the applicant claims that the breach occurred because of circumstances beyond his control he did not dispute in his response to the NOICC, nor did he dispute in the review, that he did not comply with condition 8202. Nor did he contend that the breach of that condition was not a ground for cancellation of his visa under Sec 116 of the Act. In any event I am well satisfied that these matters are clearly established.

20. Nor did he contend in the review that the delegate failed to address relevant matters or that he considered irrelevant matters in a way which somehow infected the exercise of his discretion.

21. The real and indeed only issue on the review, as it was before the delegate, is whether his visa should be cancelled. There is certainly nothing in his oral evidence or documentary case to suggest that he is now taking issue with the delegate’s finding that the ground for cancellation in fact existed. Although the precipitating events which led to the breach were clearly not within his control, as the delegate pointed out in his decision the applicant could and should have dealt with them in other ways such as by seeking a deferment of his studies, something which he had done shortly after the sudden death of his mother in late April 2017 when he returned to Pakistan for about 4 weeks.

22. In this case the applicant makes ambit and, to some extent, expanded claims in the review to the effect that his visa should not be cancelled because the failure to maintain enrolment in a registered course of study took place in circumstances where he was suffering from an undiagnosed depressive disorder arising from various unrelated events, namely the death of his mother, the ongoing effects of the pandemic as from March 2020, the asserted refusal of the Polytechnic Institute to release him from a Bachelor of Networking and Telecommunications course (BNT) in April 2021 and, more recently, other personal issues which he has given oral evidence about, namely from the breakdown in February 2022 of what appears to have been a de facto relationship and the associated difficulties in gaining access to his son, who was born in July of that year.

23. Absent any credible medical or other evidence to support his claims that he was suffering from a depressive condition or other disorder because of those events, or some of them, and that this compromised his ability to function effectively and/or engage productively with his studies, I do not accept his self-serving assertions to this effect and, in any event, I do not accept that his extensive period of non-enrolment as from April 2021 came about because he was suffering from a deteriorated mental health condition.

24. He has also given oral and documentary evidence to the effect that he recently enrolled in the course at AHMI for the same reason he gave to the delegate for wanting to study a similar course at the Campbell Institute, an enrolment which came to an end in September 2022 when his visa was cancelled.

25. His review case is that he wants to work in the construction sector to “help the (local) community” on his return to Pakistan but I do not accept that he is motivated to study these courses for that reason.

26. Nor, for reasons I will come to shortly, do I accept his claim that he was unable to enrol in another course as from April 2021 because the Polytechnic Institute refused to release him from the BNT. As will be seen, the objective features do not support this claim and, indeed, parts of his oral evidence undermine it.

    An overview of the case which the applicant put to the delegate 

27. The Department’s file confirms that the NOICC was served on the applicant under cover of an email sent to him on 5 July 2022 and that it was based on a breach of condition 8202 arising from a non-enrolment period commencing on 13 April 2021.

28. On 7 July 2022 the applicant requested more time to respond to it and, on 8 July, he was informed by the Department that he had an additional 5 working days in which to do so.  

29. Among the documents which he provided to the delegate within that extended time were the two COEs for the courses at the Campbell Institute, enrolments which had apparently taken place the day before he filed his response, on 19 July 2022.

30. In his response, the applicant acknowledged that the ground relied upon for cancellation of his visa existed but said that there were compelling reasons for his non-enrolment in the form of a series of unrelated events which, he said, were beyond his control. Reference was made to the tragic circumstances in which his mother died in the motor accident and to the effects which her sudden death had on his studies in the Bachelor of Information Technology (BIT), a course which he had studied at the University of Southern Queensland (USQ) during the period from July 2016 to in or about April 2018. The loss of his mother had, he said, a “big psychological impact” on him resulting in “severe depression and anxiety” such that he could make only poor progress with his studies in this course. The USQ Transcript does confirm that he was struggling with this course during most of this period.

31. It was also said in the submission that USQ did not help him at all and, indeed, that the staff told him that it was his problem to manage, a proposition which I am quite unable to accept at face value and which is, in any event, insupportable on the oral evidence led. According to the agent’s submission, the applicant discussed the situation with his education agent who advised him to switch to a different course at another provider which he accepted he did not do until about 12 months later, in May 2019.

32. The submission then refers to his completion of a Diploma of Information Technology at the Australian International Academy (AIA). According to the COE for this course, a copy of which was attached to the submission, it had a start date in May 2019 and an end date in May 2020. PRISMS confirms what the applicant accepted, namely that he did in fact finish this course on time despite the effects of the pandemic and his other personal issues, but other documentary evidence provided to the delegate in the form of the USQ Transcript indicates clearly enough that he would almost certainly have completed the course at AIA substantially if not entirely by means of RPL as a result of his studies at USQ, studies which had ceased by the end of Semester 2, 2018.

33. According to the submission, the next course he enrolled in was the BNT at the Polytechnic Institute, a course which according to the COE began in June 2020. The submission says nothing about his progress in this course, if indeed there was any, other than to note that because his education agent kept “blackmailing” him he eventually “gave up”, which I take to be an admission that he abandoned his studies in this course, if in fact he had engaged with it. It is also said that he could not obtain a transcript from Polytechnic unless he paid it $4,000 but no documentary or other independent evidence to substantiate these claims was provided to the delegate, and none has been provided to me.   

34. The agent went on to submit that the applicant was scared and depressed during the pandemic and at one point wanted to return home permanently but could not do so because of travel restrictions. There is no actual submission to the effect that he was unable to study because of the combined effects of the pandemic and the other personal issues which, he says, he was grappling with. Rather the submission was that his mental health was deteriorating but no medical or other credible evidence was provided to support this claim let alone the proposition that his capacity for productive study was compromised because of it. The agent sought to explain this in his submission on the basis that the applicant had been reluctant to seek professional medical treatment because of personal or cultural factors, an explanation which once again finds no support in the applicant’s oral evidence and, indeed, is in some respects contrary to it.

35. Nor was any documentary evidence provided to the delegate to support the contention in the submission that Polytechnic had refused to release him from the BNT let alone that this had somehow prevented him from enrolling in another course after his enrolment in that course was cancelled on 13 April 2021.

36. The applicant sought to explain the absence of this evidence by claiming that the “appeal process”, which I take to be a reference to an internal review of the refusal decision, was conducted using his student portal which he could no longer access because his login had been disabled by the provider, According to the submission, it was refusing to permit access unless he paid an “extra (unspecified) amount”. Once again, there was no credible independent evidence to support any of these claims and I do not accept them in the form in which they have been put to me.

37. The submission then mentions that, despite the applicant having met with an undisclosed number of education counsellors, they could not enrol him in another bachelor course. This led to him “developing” an interest in civil construction and his eventual enrolment in the package at the Campbell Institute.

38. The agent concludes his submission by alluding to the fact that the applicant did not want to return home empty-handed. He said this would bring shame to him and his father, that he was a genuine student who had “always tried his best” to comply with his visa conditions, that he wanted to fulfill his dream of having an Australian education and a career in Pakistan which could bring “immense internal satisfaction”, and that he would to that end comply with all future immigration requirements.

    A summary of the delegate’s findings

39. In his reasons the delegate expressed concerns about the applicant’s overall academic history, his extensive period of non-enrolment and his belated decision to enrol in the two vocational courses at the Campbell Institute, features which together indicated to him that the applicant no longer had a genuine intention to study.

40. Whilst he was prepared to accept that the sudden death of the applicant’s mother in April 2017 and the later pandemic would have created difficulties for him the delegate was not prepared to accept that either of these events, viewed in isolation or in conjunction with each other, justified an extensive non-enrolment period as from April 2021. He also noted that the restrictions from the pandemic had ended in October 2021 and that the applicant had ample time to rectify his non-enrolment long before he did.

41. Nor was the delegate satisfied that the asserted failure of Polytechnic to release the applicant from the BNT afforded a reasonable excuse for him not to enrol in another registered course, as indeed he ultimately did in July 2022. The delegate also noted that the applicant could have taken timely steps to contact the Department to investigate other options.

42. Although the delegate was prepared to accept that the cancellation would occasion some hardship to the applicant and his father and that certain other matters, including the legal consequences flowing from the cancellation, had to be given some weight in his favour, these were not such as to dictate a different result in the overall circumstances of the case.

43. The delegate was accordingly satisfied that the reasons to cancel the visa outweighed the reasons not to cancel it.

    Evidence and other findings in the review

44. The applicant’s academic and immigration history as contained in the PRISMS and Movements Details records was put to him at the hearing and was not relevantly in dispute. Much of his independent documentary case is consistent with the information in these records.

45. He was born in Pakistan in 1992 and arrived in Australia in May 2014 under a TU-573 visa to study a package of computer courses leading to the BIT at USQ. He completed a CIV in Programming in July 2015 and a Diploma of Software Development in July 2016 at the Canterbury Business College (CBC) before commencing studies in the BIT on 11 July 2016. An examination of the USQ transcript in conjunction with the other independent documentary evidence reveals that he passed 3 out of 4 subjects in that course in Semester 2 2016 but did not study in Semester 1 2017 having obtained a deferment from USQ shortly before he returned to Australia after a visit to Pakistan following the death of his mother. He resumed study in only 2 subjects in Semester 2 2017, presumably by arrangement with USQ, but was only able to pass 1 of them. According to the USQ Transcript he did not study at all in Semester 1 2018 and failed 3 out of 3 subjects in Semester 2 of that year, not having sat for 2 of them and after having been granted a TU-500 visa on 29 May 2018 to continue his studies in this course. His enrolment in the BIT was eventually cancelled for non-payment of fees in April 2019.

1. In all, as is recited in the USQ March 2018 letter, he completed 13 subjects in the BIT 8 of which were from exemptions based on his earlier studies. This represented about 54% of the requirements for a course which at that stage was due for completion on 30 June 2019.

2. As noted earlier he completed the Diploma at AIA in May 2020 at which time he was granted the subject TU-500 visa to study the BNT at Polytechnic, a course in which he had enrolled during March of that year.

3. As I indicated earlier many of the agent’s submissions in this case are inadequately supported by the evidence or are in some respects inconsistent with it. To take one example, the agent conveyed to the reader an impression that the applicant had never sought medical attention for his mental health issues because of cultural concerns but his oral evidence does not support this interpretation of his claim and, in fact, is contrary to it. The applicant gave evidence to the effect that he did seek help from a psychiatrist on two or three occasions during September/October 2017 and that he took prescribed medication for a few weeks before discontinuing it because it was not helping him. To take another example, the agent’s submission that USQ did nothing to help the applicant following the death of his mother is impossible to reconcile with the oral and documentary evidence which clearly reveals that it permitted him to defer his studies in 2017 and later to engage in a reduced study load. 

4. Whilst I am prepared to accept that the applicant was close to his mother and that he struggled with her sudden and tragic death during the second half of 2017, that he most probably did seek professional advice for these issues during that year, and that his studies in that year at USQ would likely have been affected because of an inability to adequately focus on them, I do not accept his claim, absent any medical evidence to this effect, that his mental health continued to deteriorate and/or that it affected his capacity to engage in productive study at that provider as from Semester 2 of 2018. I certainly cannot accept his agent’s claim, if in fact he makes it, that he was for that, or any other reason, unable to engage in productive study in any registered course as from April 2021.

5. When asked at the hearing to explain why he did not continue with his studies in the BNT at Polytechnic in Semester 1 of 2021, the applicant told me he did not want to because he had a problem focusing and wanted a break, and that he had informed the provider of these things, but he also said that he wanted to go elsewhere because Polytechnic would not give him any credits for previous studies. I prefer this other explanation given that he had obtained from USQ numerous credits from his previous studies at CBC.

6. Although he later agreed with the proposition which I put to him based on the evidence in the PRISMS record relied on by the delegate, that his enrolment in the BNT was cancelled when he left Polytechnic and transferred to another provider, I cannot fairly rely on this evidence insofar as it suggests that a transfer took place given the requirements of Sec 359AA of the Act and the fact that the objective features do not support it.   

7. That said, whatever may have been the reason for the cessation of his studies in the BNT, the applicant confirmed in his oral evidence that his enrolment in that course was cancelled by Polytechnic on 13 April 2021, that he was informed of that fact on or about that date and that he remained unenrolled in a registered course of study until 19 July 2022.

8. I do not accept his claim that he was prevented from enrolling in another course because of Polytechnic’s refusal to release him from the BNT in circumstances where his enrolment in that course was, on any view of the evidence, cancelled by that provider on 13 April 2021. In these circumstances there was nothing to release him from once the cancellation took effect and, in any event, no acceptable explanation has been given as to why Polytechnic would have repeatedly refused to release him.

9. There is no suggestion in his oral evidence that he owed any tuition fees to Polytechnic for completed study, nor is there any evidence from him that he made any progress in the course during the period from June 2020 to April 2021. He gave oral evidence to the effect that Polytechnic wanted a tuition fee in advance which he refused to pay because it would not permit him to defer his studies. This may be so, but it does not provide an acceptable explanation for him not engaging in productive study in the BNT during 2021.

10. His agent claims in effect that he has been unable to obtain a transcript of his studies in this course because of an unreasonable demand for $4,000 but has led no evidence to substantiate this and has not paused to explain what a transcript from Polytechnic would have revealed.

11. Moreover, the simple fact is that he did enrol in the vocational courses at the Campbell Institute in July 2022 apparently without difficulty and shortly before he responded on short notice to the NOICC, and he could offer no reason in his evidence as to why he could not have done this in April 2021. The agent’s claim that Polytechnic had somehow prevented him from doing this any earlier than what he did cannot possibly be sustained in these circumstances.

12. The applicant has been working since he arrived here, at first as a cleaner, later as a truck driver and, more recently, for Uber. He has never sought any work in the construction field, apparently, nor did he suggest that his work activities had been curtailed at any stage because of his asserted mental health issues, more recent relationship issues or other external circumstances.

13. Put shortly, there is nothing in the evidence led in support of the review for me to put a different complexion on the issue of whether the applicant’s TU-500 visa should be cancelled.

14. I broadly agree with the relative weight which the delegate attached to the various factors he was required to and did consider in this case. More specifically, I cannot see in the evidence any reasonable explanation for the applicant’s poor academic history as from in or about mid-2018, let alone his prolonged failure to maintain enrolment in a registered course of study as from April 2021. COVID of itself is not an acceptable excuse for the applicant not to have engaged in productive study and the agent’s submission that his mental health continued to deteriorate during the second half of 2018 and beyond it in such a way and to such an extent as to preclude productive study has no credible medical evidence to sustain it.

15. Whilst I can accept that the applicant and his father may be disappointed at the outcome of this case, I cannot accept the agent’s submission that a cancellation of his visa will have extreme psychological consequences for him. This strikes me as pure hyperbole given the absence of any evidence from the applicant to this effect, let alone a credible report from a suitably qualified medical practitioner.

16. The submission that the applicant will have to return home “empty handed” without any qualification is nonsense given his completion of the two courses at CBC in 2015 and 2016 and the Diploma at AIA in 2020. These qualifications are unlikely to assist him to find work in the construction sector in Pakistan, that much is true, but I remain unconvinced that this is in fact his motive for wanting to undertake the course at AHMI or the remaining one at the Campbell Institute. The timing of his enrolments in these or similar courses, viewed in conjunction with his work history and other objective features, strongly suggests to me (as it did to the delegate) that there is another agenda in play here.

    Summary and conclusion

17. Overall, this is a review case which in truth has very little going for it in evidentiary terms. There is certainly nothing supportive to the applicant in the circumstances in which his extensive breach of this fundamental condition arose, nor has he given to me any adequate explanation for it. Adopting as the agent did in this case a scattergun approach to the issue of whether the applicant’s visa should be cancelled with little regard to the evidence led did him no favours.  

18. Looking more broadly at his academic history and leaving aside his completion of the 3 vocational courses in the early stages of his program here, there is really nothing in his history which could be said to ameliorate the significance of the breach, or which could otherwise operate to excuse it. His belated change in academic direction has not been satisfactorily explained and his motives for now wanting to go down this path are questionable. 

19. Attributing appropriate weight to the relevant factors at the discretionary level, I am well satisfied that the reasons for cancelling the visa in this case clearly outweigh the reasons not to cancel it.

20. I thus conclude that the applicant’s student visa should be cancelled.

    DECISION

21. The Tribunal affirms the decision under review.

    Michael Bradford
    Member