Atif (Migration)

[2017] AATA 3033

Atif (Migration) [2017] AATA 3033 (28 February 2017)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Atif

CASE NUMBER:  1608703

DIBP REFERENCE(S):  BCC2016/1296922

MEMBER:James Jolliffe

DATE:28 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2017 at 9:20am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education – Not enrolled in a course of study – Completed several courses in Australia – Compassionate and compelling reasons – Financial difficulties – Medical condition – Wishes to remain in Australia long term

LEGISLATION

Migration Act 1958, s116

Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 June 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course of study and had not been enrolled since 1 December 2014. 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 16 February 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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

6. 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?

7. 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).

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

9. The Department file indicates that the applicant was forwarded a notice of intention to consider cancellation of his student Visa by email on 12 May 2016. In summary that notice set out the statutory basis for the consideration of the cancellation of the applicant’s student Visa and the grounds for consideration of the cancellation. The basis for the consideration of the cancellation of the applicant’s student Visa was that it appeared that he had not been enrolled in a registered course of study since 1 December 2014. The applicant was invited to provide any comments or response to the notice in terms of the consideration of the cancellation of his student Visa and was allowed five working days to provide that response. The notice also in summary set out the consequences if the student Visa was cancelled. The applicant responded by email dated 26 May 2016 to the notice. In summary in that response the applicant referred to his studies in Australia and he said that he had completed a diploma of information technology in 2009. He then undertook a certificate in printing and graphic arts and that was followed by a diploma in printing and graphic arts. He successfully completed those courses in 2010. He then undertook certificates in business followed by a diploma of management and successfully completed those courses in April 2013.

10. He said that he had always intended to stay lawfully in Australia and to maintain his studies. He said that he had been a regular and award achieving  student in undertaking the courses referred to. He referred to the studies that he had undertaken as being for the purpose of commencing a small business in Pakistan and with that objective in mind he had wanted to undertake an accounting course to assist him in conducting that business. He referred to enrolling in a diploma to undertake accounting studies (certificate 1V, diploma and advanced diploma of accounting). He said he maintained those studies successfully until December 2014 but that he then faced financial difficulties in terms of not being able to receive financial assistance from his brother in Pakistan. The applicant referred to his father having died in 2009 and that his brother had then provided support to the applicant for his education but because of his brother’s personal responsibilities and a loss of income his brother had been unable to continue to support the applicant and in particular in terms of the payment of his school fees. The applicant said that he had been allowed to work 20 hours per week in Australia but he could not find suitable employment. The applicant said it was a difficult time for him and he suffered stress and anxiety as well as loneliness and homelessness and unemployment and suffered without education. He said it was very hard for him to financially support himself. He said a few weeks before he had received the notice of intention he had approached an education consultant to obtain advice on further admission to an advanced diploma of Management for a six-month period. He said his financial situation had improved and that his brother in Pakistan had been able to save funds to assist the applicant with his education expenses. The applicant said he was sad when he received the notice of intention to consider the cancellation of his student Visa. The applicant said that he was currently enrolled in an advanced diploma of business for a period of six months and that the course would be completed in October 2016 and he said “eventually I have intentions to return back to Pakistan.”

11. The applicant said that he had compassionate and compelling reasons to be considered in relation to the consideration of the cancellation of his student Visa. He referred to having stopped studying in December 2014 because he was financially deprived and was suffering stress and anxiety and unemployment and a lack of support from his family. He described this as an unforeseen event in his life. He claimed his position had now slightly improved and he was in a position to continue his studies for the next six months before returning to Pakistan. He referred to having previously complied with his Visa conditions and he referred to the consequences for him if his student Visa was cancelled and he asked for consideration to allow him to complete his education.

12. A Department delegate considered the applicant’s situation and including the applicant’s response but decided to cancel the applicant’s student Visa. The applicant was informed of the cancellation of his student Visa by an email sent to him on 7 June 2016.

    TRIBUNAL HEARING

13. The applicant appeared before the Tribunal on 16 February 2017 to give evidence and present arguments. He told the Tribunal that he was still represented by his registered migration agent but that his agent was not attending the hearing. The hearing was conducted in the English language.

14. The applicant confirmed his name and personal details to the Tribunal. He said his family came from the Punjab in Pakistan and his hometown was near Lahore in Pakistan. He said he had a mother and two brothers in Pakistan and he also had three sisters and one of his sisters was studying in Australia. He said he had worked occasionally in convenience stores in Sydney and that he currently works about 6 to 10 hours a week in a convenience store in Sydney.

15. He confirmed to the Tribunal that he had not been enrolled in a registered course of study since 19 November 2014. The Tribunal referred to the PRISMS record in relation to the applicant’s student activities in Australia and also referred to the particulars contained in the notice of intention to consider cancellation of the applicant’s student Visa regarding the applicant’s student history in Australia in terms of his last date of study in a registered course. The applicant agreed with the details referred to by the Tribunal regarding his completion of courses in Australia. He said he had obtained confirmations of enrolment for an advanced diploma of business and an advanced diploma of accounting but when his student Visa was cancelled he was not allowed to undertake studies in those courses. He had enrolled in those courses after he had received the notice of intention to consider cancellation of his student Visa.

16. The Tribunal referred to the information contained in the reply provided to the Department in response to the notice of intention to consider cancellation of his student Visa. The applicant said that his brother had ceased being able to provide financial support to him from around mid 2014 and that as a result the applicant said he had not been able to continue with his studies. The applicant said that his brother had sent him between $2000 and $3000 Australian every couple of months up to that point. He said that his brother’s business in Pakistan had faced difficulties and that his brother had not been able to continue to fund the applicant's studies in Australia. The applicant said his brother had told him in 2016 that he would be able to fund the applicant’s studies again in the future but the applicant had not asked his brother for any money as he was not currently studying in Australia. The Tribunal asked the applicant if he had any documentation in relation to his claim that his brother could fund his studies again in Australia in the future. He said he did not have that documentation but would be able to obtain documentation from his brother if the Tribunal allowed him time to do so. The applicant said that he estimated that his family had spent about $80,000 Australian in supporting him since he came to Australia in 2007. The applicant said that he came to Australia with between $5000 and $10,000 in terms of Australian currency.

17. The Tribunal asked the applicant about his claims in his reply that he had been suffering from stress and anxiety and loneliness and homelessness and unemployment when his brother had been able to continue to fund his studies. The applicant said that much of the reply document had been written by his lawyer but that he had supplied the information regarding his actual study activities. He said that he had been supported by his friends in Australia after his brother was unable to fund his studies. He told the Tribunal that he had not actually been homeless as his friends had provided him with accommodation and physical support. He was asked about whether he had sought medical assistance in relation to his claimed anxiety and stress. He told the Tribunal that he had seen doctors at St Vincent’s Hospital in Sydney when he was feeling unwell in late 2014. He had no documentation in relation to that claim. He told the Tribunal that when he had not been studying he had focused on meditation and spiritual activities and he also claimed to have been depressed about his situation in terms of not being able to complete his studies. He told the Tribunal that the doctors could not find anything wrong with him but he also claimed that he got some medication on those occasions. He said he had not visited any other doctors in Australia since late 2014 and he was not currently taking any medication. The applicant said that apart from receiving assistance from his friends he relies on the income he gets from occasionally working in convenience stores in Sydney.

18. He told the Tribunal that he had not approached his education provider at the time to discuss his difficulties with being able to continue his studies. The Tribunal noted that the applicant had not sought a deferral of his studies from his education provider because of his difficulties. He also said that he had not approached the Immigration Department about his difficulties with being able to continue his studies and he told the Tribunal that he was worried that if he approached the Department he would have been told to return to Pakistan.

19. He told the Tribunal that he could not return to Pakistan because he had become used to living in Australia. The Tribunal indicated that it thought that the applicant was suggesting that he would have adjustment problems if he  returned to Pakistan rather than claiming that he had any fear if he returned to Pakistan. The applicant essentially told the Tribunal that he really wanted to stay in Australia rather than returning to Pakistan and the applicant did not identify to the Tribunal any difficulties for him  other than adjustment problems if he returned to Pakistan. The applicant has been in Australia since 2007. He also told the Tribunal during the hearing that he wanted to finish accounting studies in Australia so that he could open a small business either in Australia or in Pakistan if he had to return to Pakistan. He told the Tribunal that his sister was now studying in Australia and he thought that if he had to return to Pakistan she might suffer some emotional distress but he did not indicate that there was anyone else in Australia that would be affected if he had to return to Pakistan. He was asked what he would do if he returned to Pakistan and he said that he would open a business that involved information technology and graphics but he wanted to complete accounting studies to help with that business.He said he would save money to open that business and he also may get some family support to open that business but that would depend on his family situation in Pakistan. He said if he was allowed to continue to remain in Australia and study that he would undertake the advanced diploma in business and the advanced diploma in accounting and that would be about one year of study.He claimed that he would be able to get financial support from his brother in Pakistan to enable him to complete those studies. He told the Tribunal that his preference was to remain in Australia longer term.

20. The Tribunal noted that the applicant was in Australia on a student Visa and that the intention of the student Visa was for the applicant to undertake studies and then return to his home country. The applicant said that the Australian government allowed people to apply for visas once they had completed their studies. The Tribunal noted that the applicant had finished several courses in Australia but had not applied for any other Visa in Australia after he had completed those studies. The applicant confirmed that he understood the terms of his student Visa and the conditions of his student Visa and including that he was required to be enrolled in a registered course of study and to undertake studies in accordance with the Visa conditions. He claimed that he had been unable to comply with those conditions for reasons beyond his control because his brother was no longer able to fund his studies at the time he ceased studying but claimed to the Tribunal that his brother was now able to continue to fund his studies if the applicant asked him to do so.

21. He told the Tribunal that he wanted to finish his advanced accounting and business studies in Australia.

22. The Tribunal allowed the applicant one week to provide any further documentation to the Tribunal in relation to his application. The Tribunal subsequently received some further documents from the applicant. They were a death registration certificate that appeared to relate to the death of the applicant's father in 2009.  The Tribunal also received a birth certificate that appeared to relate to the applicant's brother. The Tribunal also received an affidavit from the applicant's brother which in summary referred to the brother having provided financial support to the applicant since the death of the applicant's father. The affidavit referred to the brother's business suffering financial difficulties in 2014 and that as a result his brother had been unable to provide continuing financial support to the applicant. The affidavit referred to the financial difficulties continuing over about an 18 month period but that since March 2016 the applicant's brother said that he was again in a position to financially support the applicant. The affidavit referred to the applicant wishing to complete his education "gain knowledge and return back to Pakistan to start his own business and/or assist me in my business for further growth and development". The Tribunal was also provided with a copy of what appeared to be a Pakistani identification card which the Tribunal assumed related to the applicant's brother (the card was essentially for most parts in a foreign language).

23. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 1 December 2014. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

24. 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.

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

26. The Tribunal has referred elsewhere in these reasons to the applicant's evidence. He told the Tribunal that there was no reason why he could not return to Pakistan but that he would have adjustment problems and he had become used to living in Australia. As indicated he told the Tribunal that he would prefer to remain in Australia rather than return to Pakistan after he completed any further studies. He also told the Tribunal that if he had to return to Pakistan he would look to open a small business and use the education training that he has received in Australia. He claimed that he wanted to complete accounting studies in Australia in order to help with the establishment of any business. In essence he claimed that he had been unable to continue his studies in 2014 because his brother had not been able to financially support him. The Tribunal has referred to an affidavit from his brother which indicates that the brother is now able to continue to fund the applicant in the future if he were allowed to remain in Australia and continue to undertake further studies.

27. The Tribunal considers that the purpose of a student Visa is for the applicant to undertake studies in Australia. The applicant told the Tribunal that he was aware of the conditions attached to his student Visa. The Tribunal notes that the applicant did not approach any education provider in relation to his financial difficulties and also did not approach the Department in relation to his difficulties. He did not indicate or suggest that he had sought a deferral of his studies when he faced financial difficulties. The applicant has been undertaking studies in Australia since 2007 and as indicated elsewhere in these reasons has already completed a number of courses of studies. Those completed courses include courses in management and business. The applicant did not undertake any studies after December 2014 and received the notice of intention to consider cancellation of his student Visa in May 2016. As indicated he had not approached the education provider or the Department to discuss his financial difficulties during that approximately 18 month period.

1. The Tribunal has referred to the financial support that the applicant has already received from his family. As indicated other than adjustment problems in returning to Pakistan the applicant did not claim that he would have any difficulty with Pakistani authorities if he returned to Pakistan. He did not claim that anyone else in Australia would be affected if his student Visa remain cancelled other than his sister who is studying in Australia and who he believes may suffer some emotional distress if his Visa remain cancelled. The Tribunal acknowledges that there may be hardship caused to the applicant if his Visa remained cancelled and that includes money that has already been provided by his family and other issues referred to in the delegate’s decision record in relation to hardship issues. The Tribunal notes those issues. As indicated the applicant has completed a number of courses since he has been studying in Australia and therefore the financial support he has received from his family has not been entirely wasted. The Tribunal considers that an overall assessment of those courses suggests that those academic achievements would assist the applicant if he returned to Pakistan and wished to open a business or work in his brother's business. The Tribunal does not consider, on the evidence before it that Australia's international obligations would be breached if the applicant's student Visa remain cancelled. Apart from the issues discussed with the Tribunal and those issues referred to in the delegate's decision record the Tribunal is not aware of any other relevant issues in terms of the consideration of the cancellation of the applicant's student Visa.

2. The Tribunal considers that the applicant's evidence to the Tribunal strongly indicates or suggests that he wishes to remain in Australia longer term. As indicated he told the Tribunal he did not approach the Department to discuss his financial difficulties and compliance with his Visa because he was afraid the Department would tell him to return to Pakistan. The applicant claimed that the financial difficulties he encountered were beyond his control in terms of his brother being unable to continue to fund him. The Tribunal accepts the evidence that the applicant's brother's business in Pakistan faced financial difficulties and his brother was unable to continue to fund the applicant's studies in Australia. However the Tribunal considers that the applicant could have approached his education provider and sought a deferral of his studies and could have approached the Department and raised his financial difficulties. He chose not to do so. He told the Tribunal that much of the information in the reply to the Department in response to the notice had been written by his lawyer and the applicant appeared to distance himself from some of the claims in that reply such as being homeless. He told the Tribunal that he had survived in Australia with the support of his friends and from some part-time work that he was able to obtain. As indicated the applicant has completed several education courses in Australia and in the Tribunal's assessment those courses would assist the applicant with his longer term ambitions if he returned to Pakistan and opened a business or worked in his brother's business. He referred to having suffered stress and anxiety but the evidence before the Tribunal is that the applicant had not sought medical assistance since 2014.

3. The Tribunal has considered the totality of the applicant's claims and his evidence. 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 Class TU visa.

   James Jolliffe
   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.