Aslam (Migration)

[2019] AATA 6759

Aslam (Migration) [2019] AATA 6759 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khubaib Aslam

CASE NUMBER:  1901965

HOME AFFAIRS REFERENCE(S):         BCC2018/4404628

MEMBER:D. Triaca

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2019 at 12:28pm

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 – purpose of visa grant no longer exist – unsatisfactory academic progress – substantial period of non-enrolment – financial difficulties – decision under review affirmed

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

CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 January 2019 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 21 May 2018. 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 1 August 2019 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 (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?

6. 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).

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

8. The delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study since 21 May 2018. The delegate identified the relevant period from 21 May 2018 to 22 January 2019 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 7 months during which the applicant was in continuous breach of the conditions of his visa.

9. In his oral evidence before the Tribunal, the applicant confirmed the delegate’s decision in relation to the period in which he was not enrolled in a registered course of study was true and correct. He had not been enrolled in a registered course of study since 21 May 2018.

10. Accordingly, the Tribunal is satisfied that het applicant was not enrolled in a registered course of study for the period 21 May 2018 to 22 January 2019 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 7 months from 21 May 2018.

    Consideration of the discretion to cancel the visa

11. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    Applicant’s Evidence

12. The applicant is a 22 year old citizen of Pakistan. He arrived in Australia in 2016 having been granted a TU573 visa on 21 June 2016 to study a Diploma of Information Technology at La Trobe College from 22 June 2016 to 10 February 2017 and Bachelor of Information Technology at La Trobe University from 27 February 2017 to 31 December 2018.

13. He says that he enrolled at La Trobe but he “did not go at all”.

14. He then enrolled at VIT in 2017 and took some classes but did not complete any courses or attend any exams. He reports that he did not like the environment.

15. He states he has not worked in Australia, save for he worked for 2 or 3 months at a restaurant. Of more recent times, he says he has tried to find some work in Australia. He has been supported financially by his father.

16. He says he faced financial difficulties. The financial difficulties were caused by a family dispute in Pakistan whereby his family owned property, and the tenant did not pay the rent as required. In addition to failing to pay the rent, the third party attempted to claim the land by force. This required his family to engage a lawyer and they became involved in an expensive legal dispute. This created a situation whereby the applicant did not receive the financial support from his family that he had anticipated.

17. He continued to live in Australia. He funded himself by borrowing money from friends. He lived with friends and they financially supported him. More recently his father’s finances have turned around and

18. He stopped studying as he was sure he could not afford the fees.

19. He had his Confirmation of Enrolment cancelled by VIT. He says that he did not pay the fees as he could not afford them.

20. He did not speak to the university about this. He did not attempt to defer his course. He was sure there was nothing he could do.

21. His plan for the future is to enrol in IT at Victoria University. He has been to the campus and has friends there.

22. If his visa remains cancelled, it is “obvious” he must return home.

23. He will suffer hardship if the visa is cancelled on account of his dreams being lost and he requires a university qualification in order to start his career in his home country.

24. After receiving the NOICC he approached an immigration consultant who advised him he had

25. Since the delegate’s decision in January 2019, he has remained at home alone and has been reluctant to venture out of the house.

26. He provided no documentation to the Tribunal in support of the application.

27. The Department sent the applicant a written Notice of Intention to Consider Cancellation (NOICC) on 19 December 2018. The applicant responded in writing to that NOICC by email dated 7 January 2019 (applicant’s response). The Tribunal has read and had regard to the applicant’s response.

    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

28. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (“Paduano”).[1] Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

    [1] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211; (2005) 143 FCR 204 [31] – [45]

29. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):

    The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.

30. “Need” is a relative concept.[2] It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[3] Need and want are not interchangeable.[4]

    [2] Dimic v Djekovic (2014) NSWSC 1502 per Hallen J at [111]; de Angelis v de angelis [2003] VSC 432, per Dodds Streeton J, at [45];

    [3] R (On the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]

    [4] Boettcher v Driscoll (2014) SASC 86 at [41] per David J

31. The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. However, it is apparent on the applicant’s evidence that his purpose evolved quite quickly as he did not attend his at all in the first instance and then later only sporadically and he did not pay all of the required fees.

32. Accordingly, the Tribunal does not consider that the applicant’s purpose of staying in Australia was study from some point in 2016.

33. The applicant says if his visa is not cancelled, he would return to study in at Victoria University IT courses. The Tribunal considers this unlikely having regard to the fact that the applicant has lived in Australia since 2016 and appears to have made no academic progress whatsoever.

34. However, taking his evidence at its highest, and accepting he holds an intention to return to study, the Tribunal considers that any present intention to return to study must be tempered by the fact he has made no academic progress in his time in Australia and his conduct in Australia set out below.

35. Having regard to the applicant’s evidence and his NOICC response, the Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia. Accordingly, the Tribunal gives only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

36. The applicant confirmed that he was not enrolled in a registered course of study from 21 May 2018 until the cancellation of his student visa 22 January 2019, being a period of approximately 7 months. This was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.

37. In his evidence, the applicant stated reasons for his non enrolment is the result of his family’s financial problems which created a situation in which he did not have the level of financial support he had anticipated.

38. The Tribunal considers, having reviewed the applicant’s evidence, that whilst he may have had some financial problems to contend with in Australia, he also appears to have had a distinct lack of motivation for study over an extended period of time.

39. The applicant was in breach of the student visa conditions for a substantial period of time between May 2018 and January 2019. What his evidence revealed is that in addition to that specific breach, he spent approximately 2 additional years in Australia as a student on a student visa without making any academic progress. His evidence was that he either did not go to class or went only sporadically during 2016 and 2017. I take that into account in assessing the applicant’s claims.

40. The Tribunal found the applicant’s evidence in relation to his financial difficulties generalised and lacking in detail. The Tribunal accepts he may have suffered some financial difficulties, but does not accept financial issues caused his breach or that his breach was caused by issues outside his control. The applicant chose not to go to classes in his initial period of enrolment at La Trobe and he does not appear to have taken any steps to remedy his financial situation or, alternatively, seek to engage with the course provider to defer the study or enter some arrangement on compassionate grounds. He did not engage with the Department. He says he was able to borrow money from friends. He did not explain why he was unable to borrow money to prioritise studying.

41. The Tribunal considers the applicant’s behaviour since arriving in Australia demonstrates a lack of commitment to his studies and he did not satisfactorily explain his failure to maintain his enrolment in a registered course or his failure to remedy that situation and the Tribunal gives this factor weight in favour of cancelling the student visa.

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

42. The applicant states his dreams will be lost if he returns to Pakistan without any qualification. The Tribunal accepts that returning to Pakistan without the qualifications he sought to achieve may cause some stress and anxiety and I accept that the applicant may suffer some degree of hardship if the visa remains cancelled and I give this some weight towards not cancelling the visa.

    Past and present behaviour of the visa holder towards the department.

43. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

44. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

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

45. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

46. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

47. The Tribunal considers these are the intended consequences of the legislation.

48. In any event, the applicant’s evidence was that if the visa remained cancelled he would return home to Pakistan and therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

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

49. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

50. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

51. There appear to be no other relevant matters of significance in relation to the present application for review.

52. Having regard to all the evidence before the Tribunal and all the circumstances outlined above, the Tribunal is satisfied that the applicant’s visa ought to be cancelled.

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

    D. Triaca
    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.