Ali (Migration)

[2019] AATA 4435

Ali (Migration) [2019] AATA 4435 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Shahmir Ali

CASE NUMBER:  1713772

HOME AFFAIRS REFERENCE(S):           BCC2017/1372311

MEMBER:Mark Bishop

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 September 2019 at 2:46pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – non-commencement of studies – late payment of fees – ill relative – financial support – no compelling need to stay – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cl 573.231, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Pakistani and English languages.

4. The applicant provided a copy of the decision record to the Tribunal.

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

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. 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) 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?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

11. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

12. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

13. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 31 May 2017 and the notice invited the applicant to respond in writing. The applicant did respond in writing on 15 June 2017. The applicant did not agree there was non-compliance. The applicant provided reasons why the visa should not be cancelled. The applicant outlined a series of reasons as follows:

    ·He paid his fees late to GCA and as a consequence GCA cancelled his enrolment. He paid his fees late because of the illness of his father. Thereafter he applied for admission to Polytech on 26 June 2017;

    ·He wished to study a Bachelor of Accounting because it was an exciting career option;

    ·He chose to study overseas because there is a trend in Pakistan to hire people with overseas qualifications;

    ·He chose to study at Polytech because it is a great institute;

    ·He outlined reasons for studying in Australia (great weather, natural beauty to see);

    ·He believes a Bachelor of Accounting will propel his degree;

    ·He lives with friends in Australia;

    ·His father provides all necessary financial support

14. The delegate made the following findings:

    ·According to the Provider Registration and International Student Management Systems (PRISMS), it appears that the applicant was not enrolled in a bachelor’s degree or master’s degree course or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017.

    ·PRISMS indicates that the applicant’s confirmation of enrolment (COE) in relation to a Bachelor of Accounting was cancelled on 23 February 2017 by Group Colleges Australia Pty Ltd citing non -commencement of studies and since then the applicant has not held enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017.

    ·Based on this information, it appears the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such, it appears the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

15. The Tribunal asked the applicant to comment on the delegate’s decision record at the hearing and in particular to comment on his enrolment and circumstances related to his enrolment in the period from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017. The applicant advised shortly after arrival in Australia he completed an ELICOS certificate in English. He said he attempted on a number of occasions to contact the administration of his college. On occasion payment of his fees was late and he could not access his student portal. He had trouble uploading assignments. His education provider cancelled his enrolments. He did not complete any Diplomas or Bachelor degrees in the period 2014 until 2017. He recently completed a Diploma in Leadership and Management in August 2019.

16. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 attached to his student visa.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

19. The applicant advised his only reason to remain in Australia was to complete his degree. He had previously been enrolled in multiple Bachelor degrees. He enrolled in the VET sector following advice from his migration agent. He advised the Tribunal the next intake for the Bachelor program started in November 2019.

20. There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose stated in his application, namely to study. In evidence the applicant advised the Tribunal he came to Australia for the purpose of study.  In evidence he advised the only reason he came to Australia was to study. The Tribunal gives this consideration a little weight in the visa holder’s favour.

    The extent of compliance with visa conditions

21. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant has not held enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass573) level from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017 where he enrolled in a Bachelor of Business (Accounting) on 11 July 2017. The Tribunal gives this consideration little weight in the visa holder’s favour.

22. 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 on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  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)

23. The Tribunal asked the applicant to address the degree of hardship he might face if his student visa was cancelled. The applicant advised that after his student visa cancellation he was granted a Bridging visa E and could not travel home to Pakistan. His father was ill and he could not return home. He did not wish to leave his studies. He felt stressed because of the decision to cancel his visa. If he returns to Pakistan without completing his studies his period of time in Australia would be without point. He studied a Diploma in Leadership and Management during 2018/2019. He completed this course.

24. The applicant advised his family is wealthy and owns his own business. He remits large sums to his son to cover expenses in Australia. The applicant advised his parents would proud of his achievements to date. His father wished him to complete the Bachelor program.

25. If the applicant’s visa is cancelled he will become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958.

26. The applicant will have limited options to apply for further visas in Australia and may be required to return to his country of origin.

27. There is no evidence that any family members in Australia will be negatively impacted by the cancellation of the applicant’s visa. There is no evidence of any children being involved.

28. Whilst the Tribunal acknowledges that some hardship may be caused to the applicant should the visa be cancelled and be required to depart Australia, the Tribunal notes that he will be eligible to apply for a Bridging Visa E which may allow him to remain lawfully in Australia so that he can finalise any outstanding matters.

29. If the visa is cancelled the applicant will become an unlawful noncitizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia.

30. Additionally, the applicant will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia.

31. The applicant will be subject to Public Interest Criterion 4013, as a result of this cancellation.

32. The Tribunal notes this unfortunate outcome, if it should occur, is a consequence of decisions of the applicant not to hold enrolment in registered courses for a period of 2.5 years between 2014 and 2017. This is a significant period of time and weighs heavily on the deliberations of the Tribunal. In particular the Tribunal notes the applicant did not address this lengthy period of non-enrolment in his response to the NOICC.  The Tribunal refers to paragraph 13 above and the applicant’s response in evidence in paragraphs 13, 15 and 23 above.  The Tribunal is prepared to accept that from time to time there may be mistakes or the like as students apply for enrolment. The applicant did not provide any correspondence from his education provider that acknowledged these errors or mistakes on the part of the administration. The applicant did not provide copies of originating correspondence from himself that sought to get these apparently recurring problems addressed. The Tribunal gives this consideration some minor weight.

33. The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to Pakistan after five years without completion of a Bachelor degree in Australia. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of his parent’s generosity and consequent opportunity in Australia. However the personal and family discomfort or embarrassment is a necessary consequence of the applicant’s continuing failure to adhere to conditions attached to his visa and engage in study at the level dictated by conditions attached to his visa.  The Tribunal is unable to conclude there is any compelling need to remain in Australia. Returning home with the aid of family the applicant will have the opportunity to commit to work and develop his career secure in the knowledge he has successfully completed a Diploma in Leadership and Management. Alternately the applicant will have the opportunity to resume studies in his home country or a third country.

34. The Tribunal is unable to determine that the applicant will suffer any degree of hardship that may be caused (financial, psychological, emotional or other hardship) by a return to Thailand.

    Circumstances in which ground of cancellation arose

35. The Tribunal has considered the grounds upon which the cancellation arose. They are outlined in detail in the delegate’s decision and summarised above. The Tribunal has reviewed the information provided on the Departmental and Tribunal files.

36. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant has not held enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass573) level from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017 2017 when he enrolled in a Bachelor of Business (Accounting) [093283C] at Australian Polytechnic Institute on 14 June 2017. The Tribunal gives this consideration a little weight in the applicant’s favour.

37. In his response to the NOICC the applicant included a medical certificate dated October 2016 stating his father has been suffering from cardiac disease. No dates were included on the form of when his father suffered the disease or whether he still suffered from it.  As the applicant did not enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass 573) level from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017 where he enrolled in a Bachelor of Business (Accounting) [093283C] at Australian Polytechnic Institute on 14 June 2017 and did not include other reasons for his repeated failure to be enrolled at the Higher Education Sector level the Tribunal gives this consideration little weight in the applicant’s favour.

    Past and present of the visa holder towards the department behaviour

38. 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

39. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart Australia.  It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled. For more detail see paragraphs 25 to 31 above.

    Whether there would be consequential cancellations under s.140

40. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

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

    Any other relevant matters

42. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member