Ali (Migration)

[2018] AATA 2750

Ali (Migration) [2018] AATA 2750 (21 June 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Mahin Ali

CASE NUMBER:  1714383

DIBP REFERENCE(S):  BCC2017/1634911

MEMBER:  Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 June 2018 at 12:35 pm (QLD time)

DATE OF WRITTEN RECORD:               09 July 2018

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 09 July 2018 at 4:57pm

CATCHWORDS
 Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Registered course enrolment – Gaps in enrolment – Poor academic performance – Changes in career plans – Decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under section 116 the Migration Act 1958 (the Act).

1. At the hearing on 21 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The delegate cancelled the applicant’s student visa on the basis that the applicant breached the condition of her visa to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 21 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was also assisted by her representative who was present during the hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE.

1. 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. If the applicant has breached that condition, under section 116 of the Act the visa may be cancelled.

Did the applicant comply with the condition 8202?

1. Condition 8202 as it applies in this case requires students to remain enrolled in a registered course. The Minister's delegate found that the applicant had not been enrolled in a registered course between 8 October 2016 and 11 June 2017. The applicant concedes that this was the case.

1. The Tribunal also put to the applicant by the required method, PRISMS records which indicated that, prior to this period, the applicant had not been enrolled in a registered course between 8 September 2016 when her enrolment in the Master of Environment was cancelled and 16 September 2016 when she enrolled in a general English course. The applicant conceded that this was the case and the Tribunal accepts that the applicant was not enrolled in a registered course during those periods.

1. On the evidence before the Tribunal the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202.

Consideration of the discretion to cancel the visa.

1. Having found that the applicant has not complied with the condition of the visa the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled and the government policy contained in the Department's Procedures Advice Manual.

1. When the applicant arrived in Australia in February 2016 she said she was enrolled in a Master of Environment at Griffith University. She gave evidence that she had completed a Bachelor Degree in Environmental Science in Pakistan. She said that although the course was conducted in English in Pakistan that much of the time lectures were delivered in the Urdu language.

1. She said that she began the Master's course at the beginning of 2016 and spent a semester in that course. She provided an academic transcript from Griffith University, which indicated that she had passed two subjects and withdrawn from a third in the first semester of 2016. She also gave evidence that she had been enrolled in another subject but that she had withdrawn from that subject prior to the census date and therefore that subject did not show up on her academic transcript.

1. The applicant gave evidence that she found it difficult to study successfully in the first semester 2016 owing to a number of reasons. The first was that the lecturer who was conducting the two subjects from which she withdrew taught at what she described as an advanced level. She later said also that he had an English accent which was difficult for her to understand.

1. The applicant also said that during the first semester 2016 she had difficulties with her study owing to personal problems that she was having.  The applicant described that she was going through a breakup at the time with a fiancé who she had been in a relationship with for some eight years prior. She described that this breakup occurred towards the end of the first semester in 2016.

1. The applicant gave evidence that although her parents and her family members in Pakistan had been against the relationship, that they had accepted her engagement to her fiancé and that they were engaged in January 2016 before the applicant came to Australia. The applicant explained that her parents were upset with her because of the ending of the relationship as they had agreed to the engagement despite having misgivings about the relationship only for the relationship to end.

1. The applicant explained that she did not have contact with her family from around July 2016 until December 2016 when she learnt that her mother had health complications and had to undergo an operation. From that point, she said, that her relationship with her family in Pakistan resumed and that they supported her again from December 2016.

1. After the applicant's first semester in 2016 she notified the University of her withdrawal from that course. As mentioned previously, she then enrolled in an English course, which she completed on 7 October 2016. She then said she applied for admission in a Master of Information Technology degree with Charles Sturt University. She said that she did not return to Griffith because the fees there were too high for her to pay and that, at the time, she was not receiving any financial assistance from her parents.

1. On 19 October 2016 Charles Sturt University offered the applicant a place in the Master of Information Technology course with that course to start on 7 November 2016. The applicant did not enrol in that course and on 14 November 2016 Charles Sturt University offered her a bursary of some $2,000, if she were to enrol in that course.

1. The applicant explained at the hearing that she did not enrol in that course because she did not have the funds to pay for the fees for that course. The Tribunal notes that this was never mentioned in the applicant's submissions to the Tribunal or any time previously to the Department.  In fact, the reason given previously why she did not enrol in that course was that the census date for that course had lapsed and that the next intake was on 7 March 2017.

1. The applicant then applied for admission at Holmes Institute for a Master of Professional Accounting and a Master of Business Administration. She was offered enrolment in those courses on 14 January 2017. That offer was valid for 28 days from the date of the offer. The applicant did not immediately enrol in that course, which was to begin on 13 March 2017, but instead waited until 14 March 2017 before accepting the offer and paying $3,250 towards that course. She said that she delayed in accepting the offer and paying the money as she did not want to put financial pressure on her parents who had had to pay for her mother's medical bills from her heart complication in December 2016. By the time she accepted the offer from Holmes College on 14 March 2017, on the same day Holmes College informed her by email that there were no more enrolment positions available at that time in the Brisbane campus and that she would have to wait until April if she wished to enrol in the Brisbane campus. The email also indicated that she could enrol in the Gold Coast campus if she wanted to start studying immediately.

1. At the hearing the applicant showed the Tribunal emails on her mobile telephone, which indicated that on 15 March 2017 she had, in fact, made contact with the Gold Campus of Holmes inquiring about beginning a course of study there. Holmes College requested that she provide a record of her studies in the last six months as they indicated that the records showed that she had not enrolled in the second semester at Griffith University as she was supposed to have done. The applicant provided Holmes College with a medical certificate indicating that she had injured her back in November 2016 and that she was unable to study for two or three months from that period. Ultimately Holmes on the Gold Coast refused to enrol the applicant at their institution.

1. The applicant then waited until May 2017 before making an inquiry with Christian Heritage College for enrolment in a Master of Social Sciences. The applicant explained that with the applications she made to Charles Sturt University for a Master of Information Technology and for Holmes College for a Master of Professional Accounting and a Master of Business Administration that she, in fact, had no interest in these subjects but that she was simply attempting to enrol in order to meet the conditions of her visa or to show that she had been making attempts to enrol in a registered course. However, she indicated that with the Master of Social Science at Christian Heritage College, she had an interest in studying psychology and that she understood that if she completed a social science degree that she would then be able to enrol in a psychology course.

1. The Tribunal has some difficulty in accepting that Christian Heritage College would accept for the applicant to be enrolled in Bachelor or Master’s Degree in Social Science as a prerequisite for her studying psychology.

1. In any event, on 12 June 2017 the applicant gained enrolment in a Bachelor of Applied Science at Christian Heritage College. She initially said that after the Bachelor of Applied Social Science that she hoped to gain entry into a psychology course.

1. The applicant's visa was cancelled on 27 June 2017, however, the applicant was issued a bridging visa, which did not contain a condition which prevented her from studying. The applicant said that after her student visa was cancelled that she approached Christian Heritage College, that Christian Heritage College indicated that they were happy for her to remain enrolled in the Bachelor of Applied Science course with them but that they raised a concern that the course was for some three or four years and that ultimately she would have to be granted another visa in order to complete her studies. The applicant indicated that she therefore decided not to continue her studies with Christian Heritage College.

1. A year has now passed since her enrolment in the Bachelor of Applied Science and almost a year has passed since her visa was cancelled. The applicant indicated that she has recently discovered that she would be eligible to enrol in a Master of Social Science course at the

University of the Sunshine Coast. She indicated that, if she was allowed to remain in Australia, she intends to enrol in a Master’s program, specifically, a Master of Social Science at the University of the Sunshine Coast.

1. The Tribunal notes this is somewhat at odds with her previous evidence that she wished to study psychology. In fact, she gave evidence that she now had an interest in studying social science.

1. The Tribunal asked the applicant whether she or any of her family members would suffer hardship if her visa remained cancelled. The applicant said that she would as it had always been her dream to complete higher education studies in Australia.

1. The Tribunal raised with the applicant its concern that, given that the applicant ceased her studies in her Master’s course with Griffith University and that, apart from an English language course, had ceased to be enrolled in any courses until shortly before the visa was cancelled in mid-2017 despite being offered enrolments at Charles Sturt and Holmes College, the applicant may not have the will or desire to successfully undertake a higher education course in Australia.

1. In addition, the Tribunal raised its concern that, because the applicant had failed to maintain her enrolment with Christian Heritage College after her visa was cancelled and in fact it appears she made little to no effort to enrol in another course until very recently, that the applicant may not have the will or desire to successfully undertake a higher education course in Australia.

1. In addition, the Tribunal raised its concern that because the applicant had applied for various courses in completely different fields of study and in some cases in circumstances where she knew that she could not pay for the courses, that she may not be a genuine student or have the will or desire to successfully undertake a higher education course in Australia.

1. The Tribunal raised its concern that, this was especially so given that the applicant had admitted that the reason that she enrolled at Charles Sturt University in the information technology course and with Holmes College in the accounting and business management courses was that she did not have an interest in those courses but rather that she wanted to be enrolled in a course so as to meet the requirements of her visa or at least give the impression that she was making attempts to meet her visa conditions.

1. In relation to the Tribunal’s concern that the applicant may not have the will or desire to successfully undertake a higher education course in Australia, the applicant indicated that she did, in fact, wish to undertake higher education courses in Australia.  She explained to the Tribunal that her failure to remain enrolled was due to her circumstances, as described previously. She said that it always had been her dream to study and complete successfully a higher education course in Australia.  As mentioned, previously, she indicated that if given the opportunity she would undertake a Masters of Social Science degree at the University of the Sunshine Coast.

1. The Tribunal raised its concern that, because the applicant had withdrawn from two of her four courses in the first semester of her studies at Griffith University and especially because she had given evidence that at times in the past she had not been able to raise the funds to pay the fees for her courses when they fell due, the applicant may not have the ability to successfully undertake a higher education course in Australia.

1. The applicant indicated that her ability to successfully undertake courses was evidenced by her completion of her bachelor's degree in science in Pakistan. Both she and her representative stressed that the reason she had problems previously with her studies in the

first semester of 2016 was due to initial problems with comprehension of the lecturers and also the personal problems that she was undergoing at the time.

1. In relation to her fees, the applicant said that she was now confident that her parents would be able to pay for her fees and she mentioned that her father had recently sold some land in Pakistan in order for the fees to be paid.

1. The Tribunal finds that the applicant does not have the desire or will to successfully undertake a higher education course in Australia. The applicant's lack of will or desire to do so is evidenced by her failure to enrol in a course from October 2016 until mid-2017. The Tribunal also considers that her lack of will to successfully undertake higher education courses is evidenced by the fact that she was enrolling in courses or she was seeking to enrol in courses which she had no desire to study and that after the visa was cancelled that she made little, if any, attempts to re-enrol in a higher education course for about a year.

1. The Tribunal also finds that the applicant does not have the ability to successfully undertake a higher education course in Australia. The Tribunal is willing to accept that the applicant's ability to successfully undertake studies in the first semester of 2016 were adversely affected by being in a new environment, comprehension problems with understanding some of the lecturers, and that she was undergoing personal problems at the time.

1. The Tribunal has also considered that the applicant has shown an aptitude for study by completing her Bachelor of Science degree in Pakistan before arrival. The Tribunal therefore places very little weight on the applicant's failure to complete full units of study in the first semester.  It does not consider that should be weighed against her.

1. However, the Tribunal still has concerns about the applicant's ability to pay her fees when they fall due as she has evidenced that in the past she has been unable to pay her fees on a number of occasions.  The Tribunal places some weight on this consideration.

1. The Tribunal is willing to accept that the applicant and her family members may experience disappointment that the applicant's visa was cancelled before she was able to complete a higher education course in Australia. The Tribunal accepts the applicant's evidence that it has always been a dream of hers to study and complete higher education courses in Australia.

1. However, the Tribunal considers that the dream has waned and, as mentioned previously, the applicant does not have the desire to currently undertake higher education courses in Australia.

1. The Tribunal accepts that if the visa remained cancelled the applicant will be prevented from applying for another visa to study in Australia for some three years.

1. The Tribunal finds that the applicant’s lack of desire to successfully undertake a higher education course in Australia and the remaining concerns about the applicant's ability to meet her financial obligations in relation to her fees in the future outweigh any hardship that she or her family members may face because of the cancellation of the applicant's visa.

1. 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 class TU visa.

Tigiilagi Eteuati Member