Anis (Migration)

[2019] AATA 2553

Anis (Migration) [2019] AATA 2553 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Muzzammil Anis

CASE NUMBER:  1822934

HOME AFFAIRS REFERENCE(S):     BCC2017/1350795

MEMBERS:Dr Jason Harkess

DATE:3 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 03 July 2019 at 12:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – grandfather’s ill health – reasonable steps to maintain enrolment – purpose of visa not fulfilled – 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. The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 20 July 2018 cancelling his Subclass 573 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 15 December 2015 with an original expiry date of 15 March 2019 providing for 3 years 3 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia. Specifically, the Applicant was to enrol in and successfully complete a Bachelor of Business at RMIT.

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required her to continue to be enrolled in a registered course of study. 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 3 July 2019 to give evidence and present arguments.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary 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?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 13 April 2017 to 20 July 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 15 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect 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’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and 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 COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] 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].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s commenced a Bachelor of Business at RMIT on 29 February 2016. However, he was granted a deferral from study for compassionate reasons for the second half of 2016 (semester 2). Ultimately, he did not return to RMIT and his enrolment was cancelled by RMIT on 13 April 2017. The PRISMS record also indicates that the Applicant enrolled in a Bachelor of Business at Asia Pacific International College (‘APIC’), another course provider, but this was cancelled on 15 March 2017 when he did not commence the course.

4. The Department of Home Affairs wrote to the Applicant on 6 June 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 Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 2 July 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant acknowledged the breach of the visa condition. In his evidence before the Tribunal on 3 July 2019, the Applicant also conceded that he had been in breach of his student visa for the period alleged by the delegate.

6. Accordingly, 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 the visa.

Consideration of the Discretion to Cancel the Visa

1. 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’.

2. At the hearing before the Tribunal, the Applicant gave evidence that was largely consistent with his NOICC response. He stated that he came to Australia for the purposes of commencing a Bachelor’s course at RMIT in early 2016. He commenced that course as planned. He successfully completed four units in the first semester of his studies. He produced documentary evidence, in the form of a digitally generated ‘screen shot’ of his academic record from RMIT, that verified his assertions in this regard.

3. The Applicant then stated that, part-way through 2016, he was advised by family in Pakistan that his grandfather was not well. He had glaucoma and was still suffering the after-effects of brain surgery that he underwent in 2015. The Applicant stated that his grandfather was 86 years old and that they had a close relationship. The Applicant made the decision to return to Pakistan to visit his ailing grandfather. To this end, he sought a formal deferral of his studies from RMIT for the second half of 2016. This request was granted by RMIT. However, the Applicant did not return to Pakistan until early 2017. The Tribunal inquired as to why that was the case. The Applicant stated that, after he had obtained his deferral, he was told by his grandfather that there was no immediate need for him to return to Pakistan and that he should delay his return home. The Tribunal asked the Applicant why he did not recommence his studies in the second half of 2016. The Applicant stated that, as the deferral had already been granted, it was too late for him to pick-up studies after the second semester had started. The Applicant stated that he spent the rest of his time in 2016 essentially ‘doing nothing’ or doing casual work as a pizza delivery driver.

4. The Applicant returned to Pakistan to visit his family, including his grandfather, on 21 January 2017. Before he left Australia, he had instructed his education agent to apply for enrolment in a course at Melbourne Institute of Technology (‘MIT’). The Tribunal asked the Applicant why he felt the need to change course providers, especially given that he had passed all his units at RMIT in the first half of 2016. The Applicant was somewhat vague in his reply, simply stating that he did not like his experience at RMIT and wanted to change providers.

5. From the Applicant’s evidence, it appears that some issue arose while he was in Pakistan as to his intended enrolment at MIT. It never eventuated. When the Applicant returned to Australia in late February 2017, however, his agent had arranged an enrolment in a Bachelor’s course at APIC. His studies in that course were due to commence at the beginning of March 2017, at the same time he had returned to Australia from Pakistan. The Applicant produced evidence demonstrating that he had paid, by way of tuition fee instalment, $3,000 to APIC. But it appears the Applicant never commenced his studies in this course. A dispute arose relating to the demand by APIC for a further payment of approximately $1,500. The Applicant produced documentary evidence corroborating his claims there was such a dispute. He pursued the dispute and sought a refund of his fees that he had paid. That dispute ultimately resolved in June 2017 whereby APIC agreed to refund the Applicant the sum of $400.

6. By this stage, APIC had cancelled his enrolment for failing to commence his studies. The dispute with APIC, it would seem, effectively resulted in the Applicant being denied access to classes while the dispute remained unresolved. For that reason, the Tribunal is satisfied that the Applicant may have had a reasonable explanation for breaching his visa for the period from 13 April 2017 to 30 June 2017.

7. However, from 1 July 2017 to 20 July 2018 the Applicant remained in continuous breach of his visa by not enrolling in any registered course of study. The Applicant’s explanation for this situation is not satisfactory. He again referred to his ailing grandfather, and also referred to health issues associated with his grandmother. The Tribunal accepts the Applicant’s evidence that his grandparents’ health issues were of concern to him. However, sickness and even death of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. 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 in their home country. 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.

8. In such circumstances, registered course providers and the Department of Home Affairs 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. For 12 months he remained unenrolled in any registered course of study. He made no attempts to contact the Department of Home Affairs about his personal situation.

9. The Tribunal is of the view that the Applicant’s behaviour in this regard fell short of a reasonable student visa holder in this kind of situation. His failure to do anything in this regard resulted in an ongoing breach of his visa. The Tribunal also notes that, while the Applicant failed to take positive action in relation to remedy the situation with respect to his continuing study obligations, he found the time to do other things while he remained in Australia. He stated in evidence that he continued to work and so, it would seem, he continued to reap the benefits of relatively high wages that Australia’s economy yields. He chose not to study and, in doing so, he was not acting in a manner that was consistent with the fundamental purpose for which his visa was granted.

10. 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 were he not allowed to complete successfully an Australian qualification. The Tribunal accepts his evidence that he highly values the opportunity to obtain an Australian qualification. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he was here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition for a period of 12 months.

11. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

12. The Tribunal notes that if the 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 Migration Act 1958 if 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 3 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. It reflects the seriousness of the breach of visa conditions.

13. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him 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.

14. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

15. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member