Ali (Migration)

[2019] AATA 1372

Ali (Migration) [2019] AATA 1372 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Ali

CASE NUMBER:  1732403

HOME AFFAIRS REFERENCE(S):           BCC2017/3719835

MEMBER:Peter Booth

DATE:9 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 May 2019 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – unconvincing reasons for not continuing study – claimed unawareness of enrolment cancellation – 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 14 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 had not been enrolled in a full time registered course since 19 April 2017. 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 23 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. 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

1. 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)(b). 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?

1. 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 8202(2) attached to the applicant’s visa. This condition requires that the applicant be in a registered course of study.

2. The delegate’s decision cancelling the applicant’s Student Visa (Subclass 500) is dated 14 December 2017 (the decision).  In it the delegate found that the applicant had not been enrolled in a full time course of study since 19 April 2017.  The decision also records that the applicant had agreed that he had not complied with the condition of enrolment.  In response to a question from the Tribunal, the applicant agreed that he had not been enrolled in a full time registered course of study after 19 April 2017.

3. Accordingly, the Tribunal finds that the applicant was not enrolled in a full time registered course of study after 19 April 2017.

4. It follows that the applicant did not comply with condition 8202(2). As a consequence the power to cancel the applicant’s visa pursuant to s. 116(1) of the Act is enlivened.

5. 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 visa should be cancelled.

Consideration of discretion

1. 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’.

2. The Tribunal turns to consider each of these various matters.

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

1. The applicant gave evidence that he arrived in Australia on 26 January 2013 pursuant to a Student (Subclass 573) visa.  He intended to study a Bachelor degree in Information Technology.  After six months he abandoned the course.  He said that it was “beyond him” and he had problems understanding English.  Subsequently he obtained another Student Visa, Subclass 500, for the purposes of studying a Bachelor of Business, he informed the Tribunal.  He did not complete the course and abandoned it after “a couple of months”, in about February or March 2017.

2. The Tribunal accepts that the purpose of the applicant’s travel and stay in Australia was for the purposes of study. However the Tribunal gives this little weight, as it is a necessary precondition to the operation of s. 116(b). There was no evidence as to whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal gives this factor no weight.

The extent of compliance with visa conditions

1. The applicant agreed that he had not been enrolled after 19 April 2017.  There was no evidence that the applicant had been enrolled in any course of study after that date.  The applicant said that he was not aware of the cancellation of his enrolment or the circumstances in which it occurred.  He did give evidence that he left Australia in June 2017 and that he was in Pakistan for about one month. 

2. In response to a question from the Tribunal, he said that he had made no inquiries of the education provider as to why his enrolment had been cancelled.  The Tribunal informed the applicant that it was difficult to accept that he had no knowledge of the enrolment cancellation, the reason for it and that he had made no inquiries of the course provider once he became aware of the course cancellation.  Nonetheless, it is clear that he did not comply with the condition after 19 April 2017.

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

1. The applicant gave evidence to the effect that he wished to obtain a visa to complete his degree that his father “had paid for”.

2. The Tribunal accepts that the cancellation of the visa will preclude the applicant from completing the course and also some financial and other hardship to the extent of possible lost fees and disappointment.  There is no evidence of any other hardship.

3. The Tribunal gives this factor little weight; it is the necessary consequence of being unable to complete a course of study.

Circumstances in which ground of cancellation arose

1. The applicant said that he could not study because of family stress.  This took several forms.  On 26 April 2017 his uncle and brother were injured in an altercation.  His uncle suffered head injuries and his brother suffered internal bleeding and internal injuries.  His uncle was hospitalised for 15-20 days and his brother for one week. 

2. Prior to that time the applicant said that his family had been stressed by being “scared by other shopkeepers”.  The applicant said that these matters caused him stress.  He returned to Pakistan to visit his family, in June 2017.  When asked why he did not visit immediately, he said he “could not decide anything at the time”, and that his father had told him to stay in Australia. Later when he did return, he said that he was “beaten up”.  He produced documents to the Tribunal, some of which were in English, some of which were not.  The Tribunal asked him to explain the relevance of the documents.  He did not have copies but said they were relevant.  He did not elaborate.

3. The Tribunal informed him that it accepted that there had been attacks on he and his family.  He said that he did not apply to defer his studies and that he did not contact the department to discuss his visa.  The Tribunal informed him that it accepted that he did not contact the department to discuss his visa or to try and defer.

4. The Tribunal does not accept the applicant’s reason for not continuing study being for “family stress, for several reasons.  First, he had given up study in February or March 2017. The attacks upon himself occurred sometime in April 2017 and can have little bearing upon allowing his enrolment to lapse.  Further, the Tribunal does not accept that the applicant was not aware of the cancellation of enrolment at the time it occurred.  He as in Australia until June 2017 and would have been available to be contacted by the course provider.  He gave no evidence as to any reason why he could not be contacted.

5. On balance, the Tribunal is not persuaded by the applicant’s explanation for not being enrolled and gives this factor significant weight.

Past and present behaviour of the visa holder towards the department

1. There is no evidence regarding this factor.

Whether there would be consequential cancellations under s.140

1. There is no evidence regarding this factor save the decision notes that no other person held a visa because the applicant held a visa.

Whether there are mandatory legal consequences

1. If the Student Visa is cancelled, the applicant will become an unlawful citizen and liable to detention or removal.  Cancellation will also have consequences for further visa applications.  These are consequences which the Act sets out.  They are the intended consequences of the immigration system.  The Tribunal accords them little weight.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. There is no evidence, save for the decision regarding this factor.  Apparently the applicant has no dependent children in Australia who would be affected by his visa cancellation.  There is no claim by the applicant for protection.  The Tribunal gives minimal weight to these issues.

Any other relevant matters

1. There are no other relevant matters of which the Tribunal is aware.

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

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Peter Booth
Member