Aqil (Migration)

[2024] AATA 3569

Aqil (Migration) [2024] AATA 3569 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rana Muhammad Aqil

CASE NUMBER:  2313685

HOME AFFAIRS REFERENCE(S):          BCC2023/2164381

MEMBER:Penelope Hunter

DATE:13 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2024 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – culture shock, death of grandfather, physical and mental health and non-commencement – application for another subclass visa made shortly before department’s notice of intention issued – possibility of study in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 August 2023 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 September 2024 to give evidence and present arguments.

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

5. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

6. The applicant is a 29 year old male citizen of Pakistan. He was granted a visa on 18 May 2022, valid to 15 March 2024, to undertake study in Australia in a Master of Business Analytics. This visa was subject to conditions, including condition 8202.

7. On 28 June 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, because the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that his enrolment in his registered course, the Master of Business Analytics, was cancelled on 20 July 2022 due to non-commencement of studies and there was no record on PRISMS of him subsequently enrolling in a course of study. The applicant was advised that this may be a breach of condition 8202 of his visa and it may form a ground for cancellation of his visa. The applicant was invited to provide comment within seven working days.

8. On 18 July 2023, the applicant provided a response to the Department together with a death certificate of his grandfather (date of death 7 July 2022), a Confirmation of Enrolment (CoE) I a Master of Business with course dates from 3 July 2023 to 29 June 2025, created on 11 July 2023, and a report from Bill Singh, consultant psychologist, dated 14 July 2023. In his response the applicant set out the following (in summary):

   i.Australia was a new experience for him, it was his first time away from home, and he was homesick and had difficulty adjusting.

   ii.He then received the news his grandfather had passed away and he became depressed and returned to Pakistan.

   iii.After spending months with his family he had recovered and then returned to Australia but he became ill again. It took months to recover from his sickness.

   iv.He was currently enrolled in a masters course and wished to complete his studies to get the best job available in Pakistan.

9. The delegate was satisfied with the material before them the grounds for cancellation under s 116 of the Act were made out. The delegate considered the submissions of the applicant, however they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

10. On 1 September 2023, the Tribunal received an application for review from the applicant together with a copy of the decision record of the delegate.

11. On 4 September 2023, the Tribunal received an application for review from the applicant together with a copy of the NOICC issued to the applicant and the decision record of the delegate.

12. On 9 September 2024, the applicant submitted to the Tribunal the following documents:

    ·Psychological report of Bill Singh, consultant psychologist dated 27 June 2022.

    ·Psychological report of Bill Singh, consultant psychologist dated 14 July 2022.

    ·Death certificate of the applicant’s grandfather.

    ·Clinical labs test reports tested 27 March 2023.

    ·Clinical labs test reports dated 6 April 2023.

    Did the applicant comply with Condition 8202?

13. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

14. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

15. In the submissions to the Department and the Tribunal, the applicant had not disputed that he was not enrolled when issued with the Department’s NOICC.

16. The applicant confirmed at the hearing that he was aware that his visa was granted subject to conditions, including the condition that he maintain enrolment.

17. He did not dispute to the Tribunal that he was not enrolled in the period between 20 July 2022 and 11 July 2023.

18. Consequently, the Tribunal is satisfied on the evidence before it that the applicant was not enrolled in a full time registered course between the period 20 July 2022 and 11 July 2023.

19. Accordingly, the applicant has not  complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

20. 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 Procedural Instruction ‘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

21. The purpose of the applicant’s travel and stay in Australia was so that he could undertake study in a Masters course. The Tribunal notes the information contained in the decision record of the delegate Departmental records indicate that after the visa was granted, the applicant first travelled to Australia on 23 May 2023. When the education provider cancelled his enrolment on 20 July 2022, they stated the reason was because the applicant had not commenced his studies. The applicant confirmed at the hearing that he did not commence his course. He said that his grandfather had died just before he travelled to Australia, he was still bereaved and he had difficulty adjusting to everything in Australia. He claimed his mental health was not good. The applicant did not obtain any further enrolment prior to the NOICC being issued. Although he obtained an enrolment on 11 July 2023 in a Master of Business Analytics, he did not undertake this course. The applicant claimed that it was because his enrolment was cancelled. This Tribunal notes however that according to the CoE this course commenced on 3 July 2023 and the delegate did not make their decision until 28 August 2023. The situation is that the applicant did not undertake any study in the past while the holder of a student visa.

22. The applicant told the Tribunal that he wished to remain in Australia to complete a masters qualification and for this reason he needed his visa reinstated. Already holding a bachelor degree he said that a masters qualification would be more beneficial to his professional career back in Pakistan. He acknowledged that he could still undertake study at a masters level in Pakistan, however he claimed that an overseas qualification was more highly regarded. He said that he was interested in business related courses, although the applicant had not obtained any future enrolment to present to the Tribunal.

23. The Tribunal has also had regard to the information contained in the decision record of the delegate that according to Departmental records on 22 June 2023, shortly prior to the NOICC being issued, the visa holder applied for a Temporary Activity (subclass 408) visa. The purpose of this visa was to allow the holder to stay in Australia to participate in events which are endorsed by the Australian government. In his application, the applicant stated the relevant event was the COVID-19 pandemic, and his role in the event was a retail assistant; and that he was working as a retail assistant. The applicant was asked about his intention when he filed this application, and whether it was just that he intended to stay in Australia to work. He claimed that when he received the email from the Department asking for his contact details he sought the advice of an agent. The applicant told the Tribunal that he had relied on the guidance of the agent in applying for this visa and he was not thinking about living in Australia, he only wanted to study. The applicant was still working for the same retail business as at the time of his application, although he claimed he was only working a few hours per week. The Tribunal was not satisfied that the applicant was did not know that this visa would allow him to remain and work in Australia without studying.

24. The applicant did not comply with the purpose of his visa while and undertake study in the past, he has no firm plans for future study and still has study options in his home country. Further he has demonstrated an intention in the past to move to a different type of visa. The Tribunal is not satisfied that he has a compelling need to remain in Australia.

25. It is considered that this factor weighs in favour of the cancellation of the visa.

    The extent of compliance with visa conditions

26. As set out above, the duration of the applicant’s non-compliance with condition 8202(2)(a) was considerable, from 20 July 2022 to 11 July 2023, approximately 12 months. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern as the failure to maintain enrolment and continue study goes to the core purpose of the visa.

27. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.

28. The Tribunal gives this factor weight in favour of cancellation.

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

29. The applicant considered that his experiences in Australia to date had caused him hardship and after everything he did not want to return to Pakistan without his desired qualifications. The Tribunal considers that the applicant has had an opportunity to demonstrate that he was both capable and genuinely intended to study in Australia. While he may desire an international qualification he may be more suited to obtaining a masters level qualification in his home country where he has the support of his family and is familiar with the culture. The applicant confirmed to the Tribunal he still had an option to study in Pakistan.

30. He has not undertaken any courses, so it is not the case that the applicant will have lost the funds that he otherwise invested in course fees and suffered a financial detriment in this regard if the visa remains cancelled.

31. The Tribunal has had regard to the report of Mr Singh. He had recommended in his report of 14 July 2023, that the applicant be granted an extension of his visa and be allowed to study. The visa of the applicant has been cancelled for over 12 months while he awaited review by the Tribunal. The applicant did not disclose to the Tribunal that his psychological condition had further deteriorated. He told the Tribunal when questioned that he did not see Mr Singh again after his report. He has not engaged in any ongoing counselling. If the visa remains cancelled the Tribunal is not satisfied that the applicant would be subject to psychological hardship, although it accepts that he will be disappointed with the outcome.

32. The applicant also claimed that he had no family onshore. He claimed he was not really interested in his work. He has established any strong community, business, employment, financial or other ties here, such that cancelling the visa would cause any hardship to him.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33. The applicant provided evidence to the Tribunal consistent with his submissions to the Department, he said that he suffered homesickness when he arrived in Australia, he said that he experienced a culture shock and had difficulty adjusting to the country. He was not comfortable the accommodation that he had arranged prior to his arrival. He said that he was anxious sharing with other students. Shortly before his arrival his grandfather passed away and this also affected him mentally.

34. Following the hearing the applicant submitted to the Tribunal two psychologists reports of Bill Singh, consultant psychologist, dared 27 June 2022 and 14 July 2023. The first report was obtained proximate to the applicant’s enrolment being cancelled. In this report Mr Singh sets that the applicant claimed that he had made a mistake coming to Australia when he was not ready, and that he narrated that he had a stable managerial job back home and was happy with how his life was before coming to Australia and that he was not happy and did not feel good in Australia, having to share rooms and feeling socially isolated. The applicant reported that he did not thing that he would change his mind. Mr Singh also reported that the applicant scores on the DASS 21 self-reporting questionnaire indicated the presence of clinically significant levels of depression, anxiety and stress. It was recommended that the applicant be released from his course so that he may return home to be with his family.

35. The applicant did not obtain a release from his course. When the Tribunal asked him whether he had made such an application, he said that he did not know how to apply for one. When asked what about approaches to education provider the applicant claimed that had no one to guide him and that obviously he made a mistake. On the evidence it appears that the applicant obtained a report for the purposes of deferral or withdrawing from his studies. It appears that he may have some idea that permission was required. He also engaged an agent to assist him with the cancellation notice and apply for the subclass 408 visa. It is not the case that he was incapable of seeking assistance. The Tribunal is not satisfied he has explained why he did not take steps to defer his studies with his education provider.

36. The applicant claimed that he was homesick and missed his family and was incapable of study. He also told the Tribunal that it was not until January 2023 that he returned home. The Tribunal asked the applicant to explain the delay and he said that he did not return home immediately because his psychologist advised him to wait and see how he felt. This is not consistent with the information contained in either report of Mr Singh. Furthermore, in his report of 27 June 2022, Mr Singh advocates for the applicant to return home. It is also not set out in either report of Mr Singh that the applicant actively engaged in any treatment between June 2022 and July 2023. As to what he was doing while he remained onshore, the applicant said that he was working a bit and mostly staying at home. The Tribunal is not satisfied that he could not have returned to study during this period.

37. It is acknowledged that the applicant returned to Pakistan between January and March 2023. He said to the Tribunal that the reason for this trip was due to his ongoing mental health issues. The Tribunal again asked him about ongoing treatment and whether he had undertaken any treatment in Pakistan and he said that he had not. However, he said that seeing his family made him strong and he re-affirmed his commitment to return to study, which was his intention when he arrived back in Australia in March 2023.

38. After his arrival the applicant said that he was initially feeling fresh but soon he again required medical treatment. This time he said it was because he felt unwell. He claimed that he had to undergo a series of tests and because he had an allergic reaction for about a month. He said that he got a lot of pimples/acne. The applicant was asked if he had to seek treatment from his psychologist again and he said that he did not. The Tribunal has reviewed the test reports provided and it is accepted that the applicant underwent a series of blood and other pathology tests on 27 March 2023 and 6 April 2023. It is not satisfied that these demonstrate that the applicant was incapable or re-enrolling in study.

39. Finally, the Tribunal has reviewed the report of Mr Singh, dated 14 July 2023, this records circumstances of the applicant similar to that in the 27 June 2022 report, however his recommendation has changed to the extension of the applicant’s student visa to allow him to continue his studies. Mr Singh does not set out what has changed in the presentation of the applicant to make ongoing study suitable for the applicant, given that the applicant scores on the DASS 21 self-reporting questionnaire still indicated the presence of clinically significant levels of depression, anxiety and stress. Mr Singh repeats much of the history of his previous report as to the causes to the causes of the applicant’s condition and further does not explain what has occurred to make the conditions for the applicant suitable at that time for study. The Tribunal is not satisfied that much reliance can be placed on the report.

40. While the Tribunal accepts that the applicant experienced difficulty adjusting to life in Australia and was still bereaved following the death of his grandfather shortly before his arrival, it is not satisfied overall that it explains the duration of his non-enrolment.

41. The Tribunal give this factor low weight in favour of not cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

42. There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in against cancellation.

    Whether there would be consequential cancellations under s 140

1. The applicant is single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled.

2. There is no weight attributed to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

3. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

4. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

5. It is accepted that the applicant wishes to remain and perhaps pursue further study. It is also accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia or applying for a different kind of visa. These are the intended and legitimate consequences of cancellation.

6. The Tribunal gives this consideration neutral weight.

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

7. The applicant is a citizen of Pakistan. There is no information that indicates that the visa cancellation would impact on Australia’s international obligations or that it would be in breach of Australia’s non-refoulement obligations. He told the Tribunal that he had no fears about returning to his home country.

8. The applicant is does not have any children whose interests would be affected by the cancellation of the visa.

9. The Tribunal gives this factor no weight.

   Any other relevant matters.

10. There were no other relevant matters that the applicant raised before the Tribunal.

    Conclusion

11. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. Overall there are limited aspects that in favour of not exercising the power to cancel. Although it is accepted that the applicant has cooperated with the Department, it is not satisfied that his circumstances account for the extended time he was in breach of the visa condition. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

12. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.