Ali (Migration)

[2019] AATA 5731

Ali (Migration) [2019] AATA 5731 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Faraz Ali

CASE NUMBER:  1810880

HOME AFFAIRS REFERENCE(S):          BCC2018/168454

MEMBER:Helen Kroger

DATE:19 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 19 December 2019 at 10:57am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – family difficulties – length of non-enrolment – failure to take reasonable steps – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant, Mr Ali, a Pakistani national, was granted a visa on 25 June 2015 for the purpose of studying in Australia.

3. On the 19 March 2018, Mr Ali was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 23 March 2018 from Mr Ali, with reasons why the conditions attached to  the visa were breached.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 17 December 2019 via video conferencing to give evidence and present arguments.

6. 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

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Mr Ali arrived in Australia on 5 July 2015 for the purpose of studying a Diploma of Business and Bachelor of Accounting at King’s Own Institute in Sydney, NSW.  He was issued a NOICC on the 19 March 2018 and provided a written response to the Department on the 23 March 2018 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time. At the hearing, the alleged breach (as discussed by the delegate in his/her decision record, and provided to the Tribunal by the applicant) was put to Mr Ali with regard to the alleged breach where his COE was cancelled on 10 April 2018 by the education provider due to unpaid tuition fees. The applicant did not dispute this finding and that his COE had been cancelled.

10. On the evidence before the Tribunal, the applicant, namely the applicant’s admission during the hearing, the Tribunal finds that the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. 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. 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’.

12. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The applicant is a Pakistani national who travelled to Australia for the purpose of studying and enrolled in a Bachelor of Accounting at King’s Own Institute, and commenced the requisite IELTS Preparation (English) course. He proceeded to study English for Academic Purposes, and the Tribunal is satisfied from the evidence before it that he completed this in February 2016.  He claims that he completed the first semester of his Diploma of Accounting, commencing in April 2016, and was invited to submit any statements from the education provider, to show what subjects he passed. Mr Ali told the Tribunal at the hearing that he only completed the first semester in 2016, that he was enrolled in the course in the second half of 2016, but that he was unsuccessful in passing any subjects. The Tribunal sought to clarify at hearing what studies Mr Ali participated in during 2016 and whilst the applicant claimed he was studying and didn’t pass, was unable to clarify exactly what subjects were attempted during this time. The Tribunal provided the opportunity for the applicant to provide a statement of academic record after the hearing and the applicant indicated that he would attempt to secure a statement from the education provider.

14. In the delegate’s decision record, provided to the Tribunal by the applicant, the delegate claims that Mr Ali was not enrolled in a registered course from 4 August 2017. Mr Ali told the Tribunal at the hearing that he didn’t pay his tuition fees due in the second half of 2017 for personal reasons and as a consequence, the education provider cancelled his COE.  He claimed that his father, who had undertaken to pay his tuition fees, was not able to pay as he was going through a divorce, and provided the following response to the delegate in his written response to the NOICC.

    Everyone has an aim to follow the dreams and passion, so do I but sometimes very unpredictable things happen to us which are unavoidable. I am an outstanding student since my childhood. I have completed matriculation and intermediate with good grades in my home country. I came Australia on July 7, 2015 on student visa to complete my higher education. All going good till July, 2017 but suddenly the thing I never in my mind ever it's happen to me.

    It's all started in the month of July  when my family was facing major emotional crisis as my parents were on the stage where they were getting a divorce.upon continuous trial for two months with the court in November my parents were given 4 months of grace time for mutual understanding. Evidence for this is attached. With such stressed out environment my father was not able to send me my tuition fees and being restricted with the student working law I could only work 20 hours which were not enough for me to allocate my tuition fees and that's why I had to quit for some time that face is also difficult for me as well I’m totally in depressed condition. But now in the month of February everything is sorted and they are ready to give themselves another chance . My father is also well and wants me to resume my educational process and is promising for my regular tuition fees. I know I am at fault I bridge the student condition and I am guilty for that but I want you to please grant me a chance to continue my studies and proof myself as a good student.

15. Mr Ali indicated to the Tribunal that he did not seek to defer the course and that when he approached the education provider about his tuition fees, that they indicated no other course of action, other than a cancellation of his COE. The applicant consistently submitted that he wished to have the opportunity to enrol so that he could complete his studies, whilst confirming that he had not sought to ascertain a COE until the outcome of his visa appeal. He confirmed that his parents were aware of his circumstances and that his father was willing to pay tuition fees should he be able to continue to study.

16. The Tribunal has considered the applicant’s completion of the prerequisite English course, that the applicant experienced difficulties in passing and persevered in order to commence the Diploma of Accounting. Whilst the Tribunal also accepts that the applicant completed one semester of the Diploma of Accounting, which he commenced in April 2016 and has given consideration to his enrolment until August 2017, when he was unable to continue his tuition fee payments due to his parents’ personal circumstances, the Tribunal has considered the period of time during which the applicant was not enrolled, and considers the eight month period to be significant.  The Tribunal has considered the applicant’s claim that he did not seek to defer his course when he discussed the fee issue with his education provider, nor did he attempt to contact the Department to advise of his changed circumstances. The Tribunal has considered the applicant’s completion of the prerequisite English course in addition to the one semester of his Diploma he has completed in the context of the period of time since his arrival in Australia, July 2015, to study. Whilst the Tribunal gives some weight to the completion of the English component and the first semester of the Diploma, it gives greater weight to the period in which the applicant was not enrolled.

17. As such, the Tribunal finds that these considerations outlined above outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

18. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

19. The applicant was provided the opportunity at the hearing, to indicate any hardship that he or his family would suffer, should his visa be cancelled. He submitted that his opportunities for employment would be very limited if he returned to Pakistan without completing an overseas qualification and that it would be difficult to secure a good and reputable job. He submitted that he was 25 years of age and that if he were to return home without completing a course, then he would have achieved nothing and that the time he had spent in Australia would be time wasted. He discussed the disappointment that his parents would experience, and indicated that they were aware of his current visa circumstances and that they were all hopeful that he would be allowed to stay so that he could resume studying, as he claims that he won’t be able to get a job without a degree. Mr Ali also claims that should his Australian visa be cancelled, that it would impinge on his ability to secure a visa from another country to study. He consistently stressed to this Tribunal that his employment opportunities would be significantly diminished should he return home without a degree and the disappointment and upset that would cause not only him, but to his parents.

20. The Tribunal has carefully considered the personal circumstances as described by the applicant and the aspirations he expressed, namely to complete a degree and return to Pakistan with an overseas qualification. The Tribunal has also had regard to his claim that he has spent a considerable time in Australia, that he is now 25 years of age and has little to show for his time here and the disappointment that a visa cancellation would impose upon his parents and in particular, his father. Whilst the Tribunal has some sympathy with the applicant in his wish not to return home without a qualification and his wish not to upset his parents, and appreciates that a cancellation would cause a degree of disappointment, and that his father is aware of the current circumstances because of the non-payment of fees, the Tribunal considers it to be not an  unusual response to a visa cancellation and there is nothing before the Tribunal to indicate that the level of distress or disappointment would be unusually significant.

21. Whilst the Tribunal is sympathetic with the applicant’s wish to complete a qualification in Australia to improve his employment opportunities, the Tribunal does not accept that a cancellation of the applicant’s Australian visa will prevent the applicant from pursuing other courses and qualifications, whether locally in Pakistan or in other countries and that the applicant would be able to consider further opportunities that would potentially assist long term with employment opportunities.  The Tribunal has had regard to the applicant’s claim that a cancellation of his Australian visa would impinge upon his ability to apply for a student visa with another country and has given this claim no weight as each country is independent in the determination and governance of immigration practices and the decisions of this Tribunal apply only to the status of his student visa in Australia.

22. Whilst the Tribunal is not unsympathetic with the claims of the applicant as outlined above, and his concerns should his visa cancellation be upheld, the Tribunal considers the employment and financial circumstances he faces are not unique, and that the disappointment he and his parents will potentially experience to not be an unusual response to the cancellation of a visa.

23. Having considered all the personal circumstances, and the evidence as outlined above (the audio file being the evidentiary basis), the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant, and by association, his family.

    Circumstances in which ground of cancellation arose

24. The applicant in his response to the NOICC in March 2018, (the extraction of the same identified above), explains that his difficulties arose in July 2017 when his parents were experiencing personal difficulties, leading to divorce proceedings, and that during this time his father stopped paying his tuition fees. He indicates that as he is only allowed to work up to 20 hours each week, a condition attached to the visa, he was unable to make the fee payments and was forced ‘to quit for some time’ and that he was ‘totally in depressed condition’.

25. The applicant indicated at the hearing that he spoke with the education provider at the time of the cancellation, and that they advised that they had no alternative to cancelling the COE if the fees were unpaid. He told the Tribunal that he did not seek to defer the course at anytime or consider returning home whilst the personal circumstances were resolved.

26. In his response to the delegate, he indicated that the personal matters of his parents were settled and that his father wants him to resume his studies and had promised to resume the payment of fees. There is no further evidence before the Tribunal to indicate any financial planning or arrangements that have been made to ensure the capacity to pay tuition fees, and the applicant indicated that he had not spoken with any education providers to ascertain potential re-enrolment availability or requirements.

27. Whilst the Tribunal is not unsympathetic with the personal circumstances of his parents, the impact of the family dispute that impinged on the ability of the applicant to study and pay for the tuition fees, there is limited evidence before the Tribunal to indicate the response of the applicant at that time in view of his changed circumstances. During the hearing the applicant confirmed that he had breached the conditions attached to his visa and that he wished to have the opportunity to resume his studies. The evidence before the Tribunal indicates that the applicant did not seek the necessary advise or assistance to properly consider his options either through his education provider or through the Department.

28. Given these circumstances, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of eight months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

29. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

30. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

31. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

32. Whilst the Tribunal is not unsympathetic to the applicant’s wish to resume studies so that he can successfully complete his studies so that he can to return to Pakistan with an Australian qualification, the Tribunal does not consider it unreasonable for the applicant to be aware of the conditions attached to his visa, namely, satisfactory enrolment with a registered provider.

33. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of eight months is significant in the context of a student’s study period and the fact that he was aware of the expectations placed upon him along with the fact that he did not seek to defer his studies within the necessary timeframe or make any attempt to contact the Department.

34. As such, considering the circumstances as outlined by the applicant during the hearing and the written explanatory statement submitted on his behalf by his migration agent, the Tribunal concludes that the visa should be cancelled.

    Helen Kroger
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.