Azhar (Migration)

[2018] AATA 1985

Azhar (Migration) [2018] AATA 1985 (21 May 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Muhammad Uzair Azhar

CASE NUMBER:  1701928

DIBP REFERENCE(S):  BCC2017/219092

MEMBER:Christine Kannis

DATE:21 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 21 May 2018 at 6:07am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Ceased to be enrolled in a registered course – Failed to complete Bachelor of Business course – Enrolment cancelled – Decision under review affirmed

LEGISLATION
Migration Act 1958, s116
Migration Regulations 1994, Schedule 8 Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2017 made by a delegate of the Minister for Immigration 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments.

5. 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

6. Under s.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. Relevant to this case, these include the ground set out in s.116(1)(b). 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.

   Does the ground for cancellation exist?

7. On 18 June 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 5 May 2016. He was enrolled in a Bachelor of Business course and his enrolment was cancelled on 5 May 2016. 

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 5 May 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.  

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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).

12. The Tribunal noted from the delegate’s decision that the applicant had previously been enrolled in an Advanced Diploma of Business with the West Australian Institute of Further Studies (WAIFS) and that he ceased study in this course on 9 June 2015. The PRISMS shows his enrolment in this course was cancelled on 29 June 2015 for Unsatisfactory Course Progress. The delegate referred to evidence available in PRISMS that the applicant was not competent in any of his study units and that he only achieved a rate of 58% course attendance in this course.

13. The Tribunal noted from the delegate’s decision that the applicant commenced a Certificate III in Commercial Cookery with Cambridge International College (CIC), a course which is not a Higher Education Sector course. He was enrolled in this course from 8 February 2016 until he ceased study on 17 March 2016. The delegate referred to evidence available in PRISMS that the applicant was reported for unsatisfactory attendance for the study period from 8 February 2016 to 24 April 2016 with a potential attendance rate of 21%. The Tribunal noted that the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled on 5 May 2016.

14. The Tribunal noted that Cookery courses are generally offered at the Vocational Education and Training Sector level which was not the level of study for which the applicant was granted his visa.

15. On  20 January 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

16. On 27 January 2017 the applicant responded to the NOICC and provided the following information:

    ·He successfully completed a Diploma of Business, a Certificate IV in Project Management and a Certificate IV in Business.

    ·In mid-2016 his life took an unexpected turn when his grandmother was hospitalised in April 2016.

    ·He was close to his grandmother and her deteriorating health adversely affected him emotionally and led to irregularity in his studies.

    ·After CIC cancelled his enrolment on 5 May 2016 he made several efforts to reinstate his enrolment at CIC but the education provider did not allow him to re-enrol. 

    ·On 23 September 2016 his grandmother passed away and this had a devastating effect on him and he was not able to concentrate on anything.

    ·He had faced a very hard time in the last few months and he had no control over the situation.

    ·His parents will be disappointed if he has to drop his studies.

17. The applicant told the Tribunal that when he first arrived in Australia in 2013 he did well and he successfully completed three courses. He started feeling homesick and at the end of 2014 he began spending time with friends who were not a good influence on him. His grandmother’s health started deteriorating at the end of 2015 and he wanted to return to Pakistan to see her but his parents would not allow him to do so.

18. The applicant said his homesickness and his concern for his grandmother caused him to lose focus on his studies. He spent time with his friends at shopping malls and drinking too much. He lost his way and stopped studying. His friends told him to enrol in Cookery courses at CIC because as long as he was enrolled he was meeting the conditions of his visa. They said he did not even need to attend any classes and so he enrolled but did not attend any classes at all.

19. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He conceded that he had made some bad decisions but asked the Tribunal to consider giving him another chance to complete his Business studies.

20. The applicant told the Tribunal he came to Australia to obtain a Bachelor of Business. His father operates a car retail business in Pakistan and he hopes to return with a Business qualification and expand the business. Noting that the applicant has successfully completed a Diploma of Business the Tribunal asked him whether this qualification would assist him with his plans. He said a bank in Pakistan would not approve a loan for expansion of a business on the basis of a diploma qualification but were likely to do so if he had a degree qualification.

21. The Tribunal referred to the applicant’s response to the NOICC in which he said that after CIC cancelled his enrolment on 5 May 2016 he made several efforts to reinstate his enrolment at CIC but the education provider did not allow him to re-enrol. The applicant told the Tribunal that this was not true and said he did not make any efforts to re-enrol until he received the NOICC. At that time he consulted a migration agent who attempted to enrol him at Murdoch University and Curtin University however because his visa had been cancelled he was unable to enrol.

22. Regarding the potential hardship which would result from the cancellation of his visa the applicant said he was 90% sure his parents would not have anything to do with him if he returns to Pakistan without a degree qualification. He did not tell them he ceased studying and spent time with friends at shopping malls and drinking because he was afraid of their reaction. When his visa was cancelled his brother told his parents and they were very angry with him.

23. The applicant said he had made mistakes and lost his way but he now wants to complete his Business studies. He no longer associates with his friends because his parents told him that he had to cut ties with them if he was to remain in Australia and complete his studies. He currently lives with his brother who is completing Cookery studies. 

    Conclusion

24. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

25. The applicant told the Tribunal that the cancellation of his enrolment was due to his homesickness, his concern for his grandmother and the influence of friends. The influence of these friends caused him to cease studying and he spent his time in shopping malls and drinking.

26. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 5 May 2016 and more than eight months elapsed from that date until the NOICC was issued.

27. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

28. The Tribunal placed weight on the applicant’s evidence that despite having enrolled in Cookery studies, he did not attend any classes because the reason for enrolment was to satisfy his visa condition and not to undertake any study. As noted, these courses were not in the level of study sector for which he was granted his visa. Nevertheless the applicant’s evidence demonstrated that he deliberately ceased studying.

29. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.

30. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant because his parents will be angry with him.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

31. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

32. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

33. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

34. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

35. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

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

    DECISION

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

    Christine Kannis
    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.