ALI (Migration)

[2020] AATA 479

ALI (Migration) [2020] AATA 479 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Awais Ali

CASE NUMBER:  1814573

HOME AFFAIRS REFERENCE(S):     BCC2018/189790

MEMBERS:Dr Jason Harkess

DATE:23 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 23 January 2020 at 3:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Master of Engineering – not enrolled in registered course – English language difficulties – adjustment problems – emotional issues – lack of evidence applicant informed department of circumstances – not genuine student – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of Pakistan and is 27 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 15 May 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

[ 2 ]The Applicant’s student visa was granted on 6 January 2017 with an original expiry date of 10 March 2019, providing for more than 2 years 2 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of Engineering at the University of New South Wales, with the course commencing on 27 February 2017 and finishing on 31 December 2018.

[ 3 ]The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

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

HEARING OF APPLICATION

[ 5 ]The Tribunal convened a hearing to consider the merits of the application on 4 October 2019. The Applicant appeared before the Tribunal in person to give evidence and present arguments by video link. He was assisted by his representative Mr Khurram Shahzad who also participated at the hearing by video link.

[ 6 ]The Tribunal hearing was conducted with assistance of an interpreter in the Urdu and English languages.

[ 7 ]The Tribunal notes that the Applicant had made a request in writing to the Tribunal on 1 October 2019, through his registered migration agent, to postpone the hearing scheduled for 4 October 2019 for approximately 6-8 weeks. That request was made on the basis that the Applicant was ‘undergoing some medical issues’ and was due to undergo an endoscopy procedure at an unspecified date ‘within a week or so’. The Applicant’s agent referred to the Applicant ‘undergoing a lot of stress because of bad health’. Medical documentation was provided in support of ongoing medical tests and procedures that were due to reported stomach pain, but not one of those medical reports supplied suggested that the applicant was incapacitated or incapable of participating at a hearing before the Tribunal.

[ 8 ]The Tribunal notes that the rescheduling or adjournment of a scheduled hearing at a review applicant’s request will only occur where there are cogent reasons for the granting of an adjournment.[1] The Tribunal is mindful that a request for an adjournment must be carefully considered and the decision to grant or not grant an adjournment must be made in a manner which is reasonable with genuine consideration of the facts and circumstances of the case.[2]

[1] Administrative Appeals Tribunal, President’s Direction: Conducting Migration and Refugee Reviews (Administrative Appeals Tribunal, 1 August 2018) cl 5.1.

[2] Ibid cl 5.2.

[ 9 ]When the Applicant appeared at the hearing on 4 October 2019, the Tribunal made an assessment of the Applicant’s ability to participate in the hearing. The Tribunal concluded that the Applicant was competent to participate. He was able to understand questions put to him by the Tribunal and his answers were able to be understood with the aid of the interpreter.

[ 10 ]The Applicant did not make any further request for an adjournment of the hearing of his application. The hearing therefore proceeded as scheduled.

[ 11 ]For the following reasons, the Tribunal has decided to affirm the delegate’s decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 12 ]The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[ 13 ]Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 June 2017 to 5 January 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 6 months during which the Applicant was alleged to be in continuous breach of the visa.

[ 14 ]The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[3] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[3] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

[ 15 ]The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment in the Master of Engineering Course due to the non-commencement of studies.

[ 16 ]The Department of Home Affairs wrote to the Applicant on 12 March 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The NOICC invited the Applicant to comment on the allegation that he had been in breach of Condition 8202 before the Department moved to cancel his visa.

[ 17 ]The Applicant responded to the NOICC by letter dated 27 March 2018. In that letter he did not dispute the breach of Condition 8202.

[ 18 ]At the hearing before the Applicant admitted in oral evidence that he was not enrolled in a registered course of study for the period 20 June 2017 to 5 January 2018.

[ 19 ]Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa.

Consideration of the Discretion to Cancel the Visa

[ 20 ]Having found that the Applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[ 21 ]At the hearing before the Tribunal, the Applicant stated that when he first came to Australia from Pakistan on 24 February 2017, it was difficult for him to adjust. He returned to Pakistan after staying in Australia for just three months. At that point, he was 25 years of age. He said that, prior to coming to Australia, he had completed a Bachelor of Engineering from 2011 to 2015 which was the qualification that made him eligible for entry into the Master’s program at the University of New South Wales. Immediately prior to coming to study in Australia, he had spent a year doing a course in Pakistan with an engineering company.

[ 22 ]The Applicant stated that he made little progress when he first started studying in Australia. He said that his English language ability was ‘weak’ and he became depressed. He referred to having difficulties with being in a house-sharing environment and having to cook for himself and do other household chores. His housemates made fun of him, as did his workmates at a car washing service where he had a part-time job at night. He had secured the work at the car wash shortly after his arrival in Australia. That is why he returned to Pakistan after an initial stay of only three months. When he returned to Pakistan in around March or April 2017, it was his intention to stay in Pakistan and not return to Australia. However, he stayed in Pakistan for only a month, and then returned to Australia in May 2017 after being encouraged to continue with his studies by his family.

[ 23 ]Upon the Applicant’s return to Australia, he did not resume his studies in any meaningful way. He told the Tribunal that he was depressed and could not adjust to the new environment in which he was now living. He said that he had never been away from his home for such a long period. He said that he stayed in his room, depressed. He said that he could not motivate himself to study and was very shy so found it difficult meeting people.

[ 24 ]The Tribunal inquired of the Applicant as to whether he sought professional help to manage his depression. He said that he saw doctors in Pakistan when he was there before he returned in May 2017. He also said that he visited a doctor with a friend when he came back to Australia. According to the Applicant, the doctor told him that he had depression but that the depression was caused by ‘tension’. Furthermore, the doctor told the Applicant that if he were to solve the tension problem, the depression would go away. The Applicant said that the 6-month period when he was in breach of his visa was a very difficult period in his life. The Applicant stated that his mood eventually became better in 2018 when he learnt to drive and obtained his New South Wales Driver Licence.

[ 25 ]The Tribunal accepts that the Applicant suffered significant difficulties adjusting to the Australian environment when he first arrived here in 2017. The Tribunal accepts the Applicant’s accounts of visiting a doctors to help him with his adjustment problems. However, there is no material before the Tribunal which might corroborate the Applicant’s claim that he may have been suffering a clinically diagnosable mental health problem for the period in which he was in continuous breach of his visa. The Tribunal can therefore do no more than place his claims of suffering into the general category of suffering that many other international students endure in having to adjust to a foreign study environment. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

[ 26 ]In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. There is no evidence that the Applicant either contacted staff at his course provider, or staff at the Department, to inform them of any personal difficulties he may have been having. For these reasons, the Tribunal finds that the Applicant has been unable to provide a satisfactory explanation for failing to maintain enrolment for a period in excess of 6 months.

Purpose of Applicant’s Stay in Australia

[ 27 ]The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. Regrettably, that purpose was effectively been defeated as a result of the Applicant’s decision to discontinue his studies in the Master’s course.

[ 28 ]The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully completing another Master’s course in engineering. The Applicant stated that he does not wish to pursue such a course. The Applicant made reference to the possibility of pursuing a course in human resources course instead.

[ 29 ]The Tribunal notes that the Applicant has not studied anything since his visa was cancelled in May 2018, even though his bridging visa would have entitled him to study since then. He has, however, been working as an Uber driver since his visa was cancelled. The Applicant suggested that he made attempts to enrol in other courses after his visa was cancelled but that no course provider would enrol him due to his visa cancellation status. The Tribunal does not accept the Applicant’s claims in this respect. There are many non-citizens that come before the Tribunal every day, who have had their student visas cancelled, but who have made the effort to enrol in a course and make progress with their studies after their visa has been cancelled and while they await a Tribunal hearing. The Applicant’s suggestion that no course provider would enrol him is without a proper foundation.

[ 30 ]The Tribunal finds that the Applicant no longer wishes to genuinely study as a student in Australia. In these circumstances, there is likely to be very little utility served by setting aside the delegate’s decision to cancel his student visa. There is no compelling need for the Applicant to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

[ 31 ]Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

[ 32 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him if his visa were cancelled and he were forced to return to Pakistan without having completed an Australian qualification. However, for the reasons that have been given above, the Applicant has failed to demonstrate to the Tribunal’s satisfaction that he is genuinely interested in pursuing further studies in Australia. The hardship he will incur at having to leave Australia is, by and large, a consequence of his failure to make any meaningful progress towards completing a qualification in Australia to date.

Applicant’s Behaviour towards Department

[ 33 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He has at all material times been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

[ 34 ]There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[ 35 ]The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

[ 36 ]The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Pakistan and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

[ 37 ]The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[ 38 ]In all the circumstances, the Tribunal is of view that the Applicant’s visa ought to be cancelled.

DECISION

[ 39 ]The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member