ATIF (Migration)

[2020] AATA 514

ATIF (Migration) [2020] AATA 514 (17 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MUHAMMAD ATIF

CASE NUMBER:  1907539

HOME AFFAIRS REFERENCE(S):          BCC2019/161324

MEMBER:T. Quinn

DATE:17 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2020 at 4:10pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not seek deferral – mental health – insufficient evidence provided – lack of academic progress – not a genuine student – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cl 500.211, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 March 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since 22 January 2016 on a student visa and was granted the current visa on 19 December 2015.[1]  The applicant is from Pakistan and initially came to Australia with the intention to study in English and Business with a view to using those qualifications to obtain a better job at home, possibly in the hospitality/restaurant business.

   [1]           See delegate’s decision.

3. On 25 March 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course. [2]  The delegate’s decision states that the applicant did not comply with this condition of his visa from 4 June 2018 to 25 March 2019.[3]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [3]           See delegate’s decision.

4. On 29 March 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal via video hearing on 17 February 2020 to give evidence and present arguments. 

6. The applicant was assisted in relation to the review by their registered migration agent; however his migration agent did not appear at the video hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   STATUTORY FRAMEWORK

10. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

11. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

12. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

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

13. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.

14. The applicant stated at hearing that he was enrolled in a Bachelor of Business Management.   The delegate’s decision states that this enrolment ceased on 4 June 2018 when the applicant notified his education provider of his intent to cease his studies and the delegate’s decision indicates the applicant was not enrolled in a full time registered course of study from that date until his visa was cancelled on 25 March 2019. 

15. At the hearing, the applicant said he had read and understood the delegate’s decision and has at all times acknowledged and accepted that there are grounds for cancellation.  However, when the Tribunal enquired with the applicant about what was taking place in the applicant’s life in June 2018 such that his enrolment ceased, the applicant was adamant that he had paid his fees and therefore maintained his enrolment until after his trip to Pakistan in October-November 2018.  This issue is dealt with further below.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

17. 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’.

    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

18. The applicant arrived in Australia with a view to obtaining a good education and securing good job opportunities in the future, with the possibility of moving to America to join his sister who is a citizen there.

19. The applicant commenced and completed an English course.  He then elected to commence a Bachelor level course, rather than a Diploma followed by a Bachelor.  The applicant gave evidence that he commenced a Bachelor of Business Management in January 2017, undertook six subjects, passed three of those subjects and failed three of those subjects. 

20. The applicant returned to Pakistan to see his family in late 2018 and gave evidence that that was when his problems started.  He gave evidence that his family wanted him to marry his uncle’s daughter, return to Australia and complete his study and then return to Pakistan to start his career.  He gave evidence that he did not want to marry someone he did now know and felt that he was being forced to.  He returned to Australia and began drinking and became involved with another woman who he was living with onshore.  He said that she drank alcohol and he began drinking heavily and during the day because he was stressed about the pressure his family were placing on him and he became unfocused and would not leave the house.  He stated he was confused, thinking too much and stayed at home in his room.  He said he did not speak to a doctor because he did not want to speak to anyone, he did not seek deferral of his course because he did not want to leave the house, and he did not call the university to seek deferral because he did not want to talk to anyone.  The Tribunal empathises with the applicant’s health circumstances in late 2018 and 2019, however, is puzzled by the lack of action taken by an individual living onshore on the basis of a student visa in circumstances where he is breaching conditions of such visa.  The Tribunal enquired about why the applicant did not return home and he gave evidence that it was because his family did not agree with his choices and he felt cut off and reliant on his girlfriend in Australia who was not a good influence on him.  He gave evidence of his Australian girlfriend being unfaithful and using him for money.

21. The applicant also gave evidence that he had not had experience drinking alcohol prior to his arrival in Australia and that he has not been drinking for approximately three months now.

22. The applicant gave evidence that he needs to remain in Australia because he feels he has wasted the last two years with nothing to show for the time and expense.  He stated that if he can stay, he will complete his Business Management degree and return to Pakistan to get married, obtain work experience in a hotel and probably start a restaurant business because he is a very good cook.  He stated his sister will invest in that business and his business education will help him in running same.  He also gave evidence of a close relationship with his father who has invested a lot of money in the applicant’s education and wants the applicant to secure a good education and good career for his future.

23. The applicant’s stated circumstances are very unfortunate; however, he has not been able to produce any corroborating evidence, particularly in relation to his mental and physical state.  Further, the timing of the difficulties faced by the applicant post-date the time at which the ground for cancellation arose (this is dealt with further below).

24. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has been onshore for over four years and has had ample opportunity to engage with and complete a Bachelor level course and considers he has options to complete further studies in Pakistan if he chooses (although the Tribunal acknowledges the applicant’s submission that the quality of such education is not of the same standard or given the same regard as one from Australia).

25. The Tribunal notes that the nature of the student visa programme is necessarily temporary and after over four years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study in his home country.  The Tribunal considers the evidence in favour of cancelling the applicant’s visa is slightly higher than that against cancelling the applicant’s visa in this case.

    Circumstances in which ground of cancellation arose

26. A Notice of Intention to Consider Cancellation dated 18 February 2019 (‘NOICC’) was sent to the applicant.  The applicant sought and was granted an extension of time to respond to this and in that response detailed his circumstances as summarised in paragraph 24 above.[4]

    [4]         See page 20 of the Department file.

27. At the hearing, the applicant said he had read and understood the delegate’s decision.  However, when the Tribunal enquired with the applicant about what was taking place in the applicant’s life in June 2018 such that his enrolment ceased, the applicant was adamant that he had paid his fees and therefore maintained his enrolment until after his trip to Pakistan in October-November 2018.  The Tribunal spent some time on this issue with the applicant, however, he insisted he was enrolled in June 2018 and did not provide any evidence of circumstances in June 2018 such that the Tribunal could assess his situation at the time when the ground for cancellation arose.  The applicant has never previously raised his submission that the ground for cancellation stated in the delegate’s decision is incorrect. 

28. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[5]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[6] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations. It is this database which the Department has reference to in ascertaining any cancelled enrolments and sending out NOICC’s. On this basis, the Tribunal prefers the evidence of the delegate’s decision over the applicant’s oral evidence that he did not cease his enrolment in his course until late 2018.

    [5]Section 10 of the ESOS Act.

    [6]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

29. The applicant’s submissions in relation to the circumstances in which the ground for cancellation arose are outlined in paragraphs 23-26 above.  The Tribunal is troubled by this evidence.  Firstly because it does not explain why the applicant was not enrolled from June 2018.  Secondly because there is no corroborating evidence; the Tribunal considers that a genuine student who takes their study seriously would have taken more positive steps to ensure they were complying with the conditions of their visa, including taking appropriate action in relation to their mental and physical health and/or contacting their course provider.  Further, the applicant gave evidence that he has not been drinking for the last three months but that he is not enrolled in any course or studying at all.  He stated his migration agent had advised him to wait and that he could obtain an enrolment after leaving his hearing.  The Tribunal was, again, troubled by this evidence as it seemed to be submitted on the basis of securing a positive outcome from the Tribunal, rather than a genuine desire to enrol in and pursue a course of study.  This is not the conduct one would expect of a genuine student who takes their situation of seeking to reside onshore on the basis of a student visa seriously.  The Tribunal notes that if the applicant had in fact produced a COE at hearing for study to be undertaken at some time in the future, the Tribunal would still have serious concerns about the fact that the applicant has been onshore now for in excess of four years and has only completed one English course and two semesters of a Bachelor course, 50% of which he failed.

30. The Tribunal accepts that the applicant may have faced personal difficulties and empathises with the applicant but considers it does not satisfactorily explain the applicant’s failure to comply with his visa conditions.  The option to return to Pakistan to avoid breaching his visa conditions was open to the applicant at all times. 

31. The Tribunal acknowledges that if the applicant’s family put pressure on him about marriage this was out of the applicant’s control but considers that his choice of girlfriend in Australia, his choice to consume alcohol excessively and failure to seek medical or other assistance were within his control.  Further, the Tribunal also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

32. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions.  However, on the evidence he supplied, the applicant has not made the academic progress one would expect of a genuine student who has been onshore on the basis of a student visa for the period of time which the applicant has been onshore for, particularly given he failed 50% of the subjects which he did undertake in his Bachelor course.  Further, the applicant’s breach of the condition of the current visa is extensive, being approximately nine months.  The Tribunal considers the nine month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

33. The applicant’s evidence was that if he can complete his Bachelor in Australia the quality of his education and knowledge will be higher and that he will be able to secure a good job and speak wisely about business matters upon his return to Pakistan.  When pressed about how cancellation would impact him he stated he did not know what would happen, that it would be very hard for him.  Whilst he acknowledged that his present situation was his mistake (and the Tribunal commends him for taking responsibility for his actions), he submitted that his father has spent money on his education from childhood and it is very important to his father that he complete his studies and secure a better future.

34. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

35. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

36. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

    The visa holder’s past and present behaviour towards the Department

37. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

38. This is not relevant to the applicant.

    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 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. If the current visa is cancelled, this will result in the following:

   a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.the applicant will have limited options to apply for further visas in Australia;

   c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

   The Tribunal gives little weight to this consideration in favour of the applicant because:

   ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·it reflects the seriousness with which the Department takes this type of cancellation ground;

   ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

   Australia’s international obligations

2. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

   Any other relevant matters - Nil.

   CONCLUSION

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

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   T. Quinn
   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.