Ashraf (Migration)

[2018] AATA 3680

Ashraf (Migration) [2018] AATA 3680 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jamal Ashraf

CASE NUMBER:  1702726

HOME AFFAIRS REFERENCE(S):           BCC2016/4243164

MEMBER:Stephen Witts

DATE:4 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 September 2018 at 9:41am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Breach of enrolment conditions – Gap in study – Financial difficulties – Poor academic performance – Hardship – Family disappointment – 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 9 February 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(1)(b) of the Migration Act 1958 (the Act).

2. The applicant, Mr Jamal Ashraf, is a citizen of Pakistan. He was granted a visa to study in Australia.

3. On 13 January 2017 the applicant was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. It appeared that the applicant was not enrolled in a registered course.

4. The applicant requested a two-week extension of response to the Notice of Intention to Consider Cancellation on 17 January 2017 which was granted until 8 February 2017. The applicant was reminded that under departmental policy, the department was unable to provide the applicant with any further extension. The applicant was informed that if a response was not received within this additional time frame, a decision on whether to cancel the applicant’s visa would be made using information already held by the Department. No response to this was received by the Department.

5. The delegate cancelled the visa on 9 February 2017 on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 29 August 2018 to give evidence and present arguments.

7. 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

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

   Did the applicant comply with Condition 8202?

9. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

11. At hearing, the alleged breach was put to the applicant and reference was made to PRISMS records referenced in the delegate’s decision record provided by the applicant which indicated that the applicant was not in a registered course of study during the period 7 March 2016 until 9 February 2017. The applicant confirmed that this was correct.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visas should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

15. The Tribunal has considered any submissions provided to the department or to the Tribunal and also the evidence taken at hearing and presented to the Tribunal.

16. On 19 February 2018 the applicant provided a submission to the Tribunal (AAT file folio 17-18). This submission is set out below:

    I am writing this letter in response to the opportunity given to me by the Tribunal to provide information regarding the decision made by the Department to cancel my Subclass 573 Higher Education Sector Visa.

    I provide the following information in support of my application for review:

    I came to study a Bachelor of Accounting at AIH and continued to study properly for three semesters at AIH. During the end of November 2015 semester, I could not pay the fees for my studies. This was because I had some financial problems in my home and my father could not send me the fees on time. Therefore, they did not issue me the transcript, despite my hard work, I could only pass six subjects in three semesters. I thus decided to change my approach to studies. I looked at other education providers who could help me study properly.

    I got enrolled in GCA in March 2016 but due to lack of financial funds, I could not continue studies there also. As a result of not being able to studies, I got more and more sadder and it affected my health. I talk to my family who would always tell me that I should continue my studies but I did not receive any other support from them be it financial or emotional.

    Since I did not study during this March 2016-June 2016 period, any college or education provider I applied for did not give me any offer letter in July 2016. I tried to talk to many education agent that I am a good student and I will continue to study despite the financial hardships, I did not get any offer letter. This is why I could not study during July 2016 to November 2016 period.

    November 2016-March 2017

    I was of the view that I did not have to study during this summer holiday. Many of my friends told me that since they have holidays at this time period, I also do not need to study. Any education agent that I talk to told me that I should come back in March 2017 to start studying.

    March 2017-June 2017

    I went back to GCA and begged them to provide been enrolments so that I could study properly and bring my life on track and go back to Pakistan. They finally offered me a place and I enrolled in four subjects in GCA I worked hard on my studies but could not pass any of the subjects enrolled. I took help of friends and school instructors, made a routine of study is but despite all this I could not pass the subjects. After this I really felt very mentally weak and could not continue on studying. This affected my physical ability to study also.

    My compelling need to stay in Australia:

    I came to Australia to study and because of various reasons I could not study properly. Initially due to lack of financial support from my family, I could not continue on to study. Later despite my hard work, I could not pass subjects and I felt very weak mentally to study. Now, I am in a very difficult position. I do not have any educational qualification and if I have to return back home in this situation, it would be very bad for me. I will not be able to live my life properly specially when my father is not supportive of me. I have to finish some studies here in Australia to be able to return to my home country and be able to lead a comfortable life. If I cannot study here, it will mean that I have to face a lot of social consequences in Pakistan may not be able to study and/or get a good job later in my life.

    My compliance with previous visas.

    I have always tried to comply with any visas granted to me. I have made all efforts to get enrolled in a course so that I can continue studying. But due to factors beyond my control, I could not get enrolled in courses. When I had student Visa, I work for only the hours allowed by the visa. When my visa was cancelled and I did not have work right, I did not work and tried to manage my finances by borrowing funds from my friends. I owe them a lot of money and gratitude for help me during my times of need.

    Hardship that may be caused to me and my family

    if I am not allowed to stay in Australia and study and finish the course, it will have a devastating effect on my family. I will not be able to go back to Pakistan as I will be ridiculed, and my life will become a social mess. I will not be able to earn decent money for myself and my future family. My family is already not supporting me, and I may be required to go through a lot of hardships to continue living my life in Pakistan.

    If I am allowed to study, I intend to complete a diploma, advanced diploma and if possible a bachelor’s degree in Australia so that when I go back to Pakistan, I will have the ability to earn for myself or my future family.

    I understand given my immigration history, it seems that I will not study but if given the chance to study, I would like to get on the right path and study to make a good career for myself.

    Please let me know if you need any further information in support of my review application and I will gladly provide them.

17. The Tribunal had a discussion with the applicant regarding the applicant’s enrolment and study here in Australia between 7 March 2016 and 9 February 2017. The Tribunal put to the applicant that the delegate had contended in its decision of 9 February 2017 that the applicant was not enrolled to study during this period of time.

18. The Tribunal put to the applicant that on the evidence presented to the Tribunal it would appear that the applicant was not enrolled to study here during this period of time. This evidence included material provided by the delegate, in particular the applicant’s PRISM record as referencing the delegate’s decision record that demonstrated that the applicant was not enrolled to study during this period.

19. The applicant also provided material (AAT file folio19-22) which consisted of copies of certificates of enrolments created on various dates for studies towards a Bachelor of Business and a Bachelor of Accounting. The Tribunal finds that this material was not relevant to the consideration as to whether the applicant was actually enrolled between 7 March 2016 and 9 February 2017.

20. The applicant also provided an Academic Transcript (AAT file folio 16) from the Universal Business School in Sydney for a Bachelor of Business dated May 2017. This academic transcript outlined that the applicant was absent during his entire enrolment in that particular course. The Tribunal finds that this material demonstrates that the applicant was not enrolled between 7 March 2016 and 9 February 2017.

21. The Tribunal had a discussion with the applicant regarding this material and the applicant acknowledged that he did not study during this period. The Tribunal finds that the applicant was not enrolled to study a course here in Australia during this period.

22. The information provided above to the Tribunal and the information provided at the hearing has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

23. The applicant stated that he first arrived from Pakistan in 2013. He has been in Australia for five years and stated his intention was to come here and study. He completed high school back in his home country and did not have any other qualifications prior to coming to Australia.

24. According to the applicant’s evidence, and to material in the delegate’s file, and the delegate’s decision record, the applicant has not been able to successfully complete any courses here in Australia despite numerous enrolments in a Diploma of Commerce, a Bachelor of Business, and a Bachelor of Accounting. All these courses were subsequently cancelled.

25. The applicant’s last enrolment was in a Bachelor of Accounting which was due to commence on 9 November 2015. The applicant acknowledged that this course was cancelled and that he has not had any success with his study here and has not been able to complete any courses.

26. The applicant stated that he has a mother and a father, a brother and sister, and an uncle and aunt back in his home country. He stated that he has a younger sister here in Australia who is been here for a year on a student visa studying a Bachelor of IT.

27. He stated that he has been back to his home country once in January 2017 for a period of 10 days. He stated that he has not travelled anywhere else outside Australia and his family have not come here to visit.

28. The applicant stated that he is currently working in a convenience store, a 7/11, and earning between $700AUD and $800AUD per week. He stated that he was renting in Sydney with friends.

29. The Tribunal had a discussion with the applicant regarding his stay in Australia and whether he had a compelling need to remain in Australia.

30. The applicant stated that he needed to complete his accounting degree and return home to his home country as his father was now aged and he needed to get a good job in accounting.

31. The applicant stated that during his time here in Australia his financial situation changed because his father’s business partner had an argument with his father and this led to a situation where his father was unable to pay for his studies. He testified that at some point he had to get loans from his friends to remain here in Australia.

32. The applicant stated that he tried to get a student loan as his father was not able to support him whilst he was in Australia and that all he was able to do during this time was to “get a couple of COE’s”.

33. He stated that now his father was able to support him again and that he’s reached agreement with his father that his father would pay for half his studies. The applicant stated that he is now able to continue his studies and has a need to remain here in Australia and complete his accounting degree prior to going home as he did not want to go home without an accounting qualification. The applicant stated that he should be able to reenrol in his accounting degree as he has already successfully completed some subjects which he should receive some allowance for.

34. The Tribunal does not give much weight to this evidence as during his five-year period here now in Australia the applicant has not been able to successfully complete any qualifications despite having eight different enrolments in commerce, business, and accounting. This is a significant period of time wherein the applicant could have made other arrangements for his study here or have returned home for a period of time. The Tribunal finds that the applicant’s lack of study for more than 12 months is a significant breach.

35. The Tribunal finds that the applicant has not put forward a compelling need to remain in Australia on student visas to study for his accounting degree. The Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

36. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. 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)

37. The applicant explained that because of financial hardship caused by his father’s business problems that he did not have any money to pay rent and had to live with a friend for a time. He also indicated that he lost his job for a while and struggled to pay for his rent.

38. The applicant stated that he would experience a degree of hardship if he was not able to remain in Australia, on student visas, and enrol again in his Bachelor of Accounting. The applicant stated that if he had to go home at this point he would not be able to find a good job as there was big competition for jobs and he would have trouble getting a job as he only finished high school.

39. The applicant stated that he is the eldest brother and his role is to support his father in his garment business in the clothing industry. He stated that he wants to go and work with his father and to do that he needs to complete his education. He also asserted that an accounting qualification would allow him to be able to expand his father’s family business.

40. When asked by the Tribunal if his family, particularly his father, understood where he was at with his study situation here in Australia, the applicant responded that his father knows everything about his situation here. He testified his father informed him in mid-2015 that he would not be able to fund his courses for a period of time. He then told him in April 2018 that he would now be able to fund, or part fund, his study here in Australia.

41. The applicant stated that he now wants to study for his degree and go home.

42. The Tribunal recognises that the applicant did have problems here in Australia with his study caused by a family problem with being unable to provide money for his fees for a period of time. The Tribunal also recognises that this did cause the applicant some emotional distress at this time. However, the Tribunal finds that these considerations do not outweigh the applicant’s poor study record here in Australia and the significant breach of not being enrolled during this period in favour of not cancelling the applicant’s visa.

    Circumstances in which grounds of cancellation arose

43. The applicant acknowledged that his visa was cancelled due to his lack of enrolment to study during the stated period of time. However the applicant argued that he was unable to study during this time because of financial hardship.

44. The Tribunal is concerned by this evidence as the applicant has now been in Australia for more than five years without actually successfully studying any of his courses. There have also been significant study gaps for large periods of time since 2013 where the applicant has not been enrolled to study.

45. The Tribunal gives some weight to the applicant’s situation regarding his financial hardship causing some stress on his day-to-day circumstances. However, the Tribunal does not see this as sufficient reason not to be enrolled in a registered course as the applicant has been working for significant periods of time and earning up to $800 per week here in Australia.

46. Furthermore the applicant provided no evidence of his attempts to enrol during this time or at other times during his stay here in Australia. As such, the Tribunal gives limited weight to this reason for not being enrolled in a registered course of study.

47. Given the circumstances above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of 12 months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present conduct of the visa holder towards the Department

48. 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 subject 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

1. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

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

2. There is nothing before the Tribunal to indicate our international obligations to consider.

   Any other relevant matters

3. The applicant did not provide any other reasons for his lack of enrolment during this period other than a difficulty with paying his fees because of a business problem that his father had back in his home country.

4. The applicant gave no indication when asked to explain and detail to the Tribunal any other concerns he may have as to his general welfare should the visa be cancelled. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in Pakistan, particularly given his statements that his father was looking forward to welcoming him back into his business, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population of Pakistan is significant and there are many people in full-time employment without a specific education from Australia.

5. The Tribunal has considered the applicant statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, he made no attempt to inform the Department or to rectify the situation and the Tribunal places significant weight on the length of the breach, namely in excess of 12 months. The fact that the applicant was having problems paying his enrolment fee, does not adequately explain why he would not be able to remain in a registered course of study. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanation.

6. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of in excess of 12 months is significant in the context of a student study period and the fact that he would be well aware of the expectations placed on him and he was unable to provide any evidence of attempts to inform the Department, nor did he return home which was an option during this period. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

   DECISION

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

   Stephen Witts
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.