AZIZI (Migration)

AZIZI (Migration) [2020] AATA 1448 (10 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sartaj Aziz AZIZI
CASE NUMBER:  1929471
HOME AFFAIRS REFERENCE(S):          BCC2019/3220271
MEMBER:Elizabeth Tueno
DATE:10 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 10 February 2020 at 3:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – applicant plans to marry his Australian partner – applicant not planning to return to Pakistan – financial hardship – unsatisfactory course progress – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course since 22 August 2018, finding that there were grounds for cancelling the visa, and that the grounds for cancelling the visa outweighed the reasons not to cancel 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.
The applicant appeared before the Tribunal on 16 December 2019 by way of video call to give evidence and present arguments, as the applicant was in Sydney and the Tribunal Member was sitting in Melbourne. The Tribunal also heard evidence from the applicant’s partner, Ms Melissa Tiricovski. The applicant was represented at the hearing by his representative, Mr David Coote.
The Tribunal has taken into account the oral evidence and submissions given at the hearing as well as documents provided to the Tribunal by the applicant prior to the hearing, including a statutory declaration signed by the applicant and dated 30 January 2015 (presumably an error since the declaration refers to events occurring in 2018), a psychologist report dated 16 September 2019 from Mr Phillip David Eugene Wolfers, and other documents.
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
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?
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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant agreed that he was in breach of condition 8202 as he has not been enrolled in a course since 22 August 2018. He said that since going onto a bridging visa, he has not been permitted to study. The applicant did not provide a copy of his bridging visa so the Tribunal.
On the evidence before the Tribunal, the applicant was not and is still not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘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
The applicant is a 26 year old Pakistani national. He gave evidence at the hearing that he came to Australia for the purpose of studying a Diploma of Hospitality and that he also intended on completing a Bachelor of Business Administration course. There was no evidence presented at the hearing, nor in the Department’s file that the applicant came to Australia for any purpose other than to study.
However, the applicant told the Tribunal that he has been in a relationship with his partner for approximately a year and two months (now a year and four months) and that they are planning on moving in together. They have registered their relationship with NSW Registry of Births Deaths and Marriages recently because they want the applicant to remain in Australia and so that they can continue their lives as partners. Their plan is to get engaged and to get married. The applicant stated that following the completion of his studies, he plans on staying in Australia and getting work so that he can remain with his partner and have a good quality life here together. He stated that he is not planning on returning to Pakistan at this stage.
The applicant has not applied for a partner visa yet, although there was evidence and submissions made about him wanting to go down this path. The Tribunal considers that the applicant’s reasons for wanting to stay in Australia have moved from wanting to complete his studies to become focussed on wanting to stay in order to create a life here with his partner. There are other pathways to achieve this result, such as a partner visa, which are more appropriate for the applicant’s situation. However the applicant has not made any attempt thus far to even apply for this. The Tribunal is not convinced that that the applicant has a compelling need to remain in Australia when taking these matters into account. Accordingly, the Tribunal gives this some weight in favour of cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant stated in his statutory declaration that he first arrived in Australia on 26 May 2013 on a student visa and that he was enrolled in a Diploma of Hospitality Management at Western Sydney Institute, with a pathway to studying a Bachelor degree at Central Queensland University in Sydney. He paid a total of $13,000 for the Diploma course, which he went on to successfully complete in June 2014.
He then enrolled in a Bachelor of Hotel Management at the Central Queensland University. However, he encountered difficulties paying the tuition fees. The stated that the overall costs of the degree was going to be $37,140.
At the hearing, he confirmed that prior to coming to Australia, he was aware of costs involved in studying these courses. It was agreed between the applicant and his parents that his parents would pay the tuition fees and he would pay for his own living expenses. He confirmed at the hearing that the course fees had not changed from when he looking at studying in Australia while still in Pakistan compared to when he arrived and commenced the courses.
He said that his parents paid for the Diploma and the first semester of the Bachelor degree. He was working at Nando’s, earning approximately $800 to $900 per week before tax. He used some of his earnings to contribute towards his tuition fees.
He commenced the first semester of the Bachelor degree and asked for money from home, but his family could not provide it. After completing the first four subjects of the course, he stopped attending the University. He took a study break for four months so that he could work more and bring in more income. He said when this occurred, he developed anxiety , which led to high blood pressure and insomnia. He had difficulties coming to terms with the financial hardships he was experiencing.
In February 2015, he enrolled in a Diploma of Business at Australis Institute of Technology, which he completed in August 2015. He confirmed this course cost $4,200, which he paid for himself.
He then enrolled in a Bachelor of Business Management at Kings Own Institute. He said he managed to pass 18 of the 24 units of this course. He failed a subject twice and because of his unsatisfactory course progress, his enrolment was cancelled. He confirmed that he was paying $1,100 per subject and managed to pay this by organising money locally as well as from overseas. He was studying this course from 2015 to 2018.
He applied for and was accepted into a Bachelor of Business Accounting course at Holmes Institute and was credited with 12 subjects. To fill in the gap between finishing up at Kings Own Institute and commencing at Holmes Institute, the applicant undertook an English language course. He said that whilst he did complete the course, his attendance was less than 50% which meant he could not pass the course. He said for a 6 week course, he paid the $1300 - $1500 tuition fees himself.
Due to his lack of attendance in the English language course, he was not allowed to enrol in the Bachelor of Accounting course at Holmes Institute, despite paying an initial $3,400 in tuition fees – an amount he said he did not get back.
He has not studied since 22 August 2018. He said that it never occurred to him to attempt the English language course again in order to gain entry to the Bachelor of Business Accounting course.
Since 22 August 2018, he has been working 20 hours per week at Dalton House, an events centre where he is employed as an events supervisor. He earns $470 per week after tax.
He attended a psychologist, Mr Wolfers, for an assessment on 12 September 2019. Between that appointment and the hearing before the Tribunal, he has commenced taking Circadin (to assist with his sleep problems) and Lexapro (an anti-depressant). At the time of the hearing, he had a future appointment with a Mr Metry, psychiatrist, although he had not consulted him previously.
The Tribunal accepts that the stopping and starting of courses and the financial difficulties the applicant was experiencing meant that he suffered psychologically as a result. It accepts that he would have been suffering from depression, anxiety, hopelessness and low self-estimate – all matters that Mr Wolfers notes in his report.
However, the Tribunal notes that since arriving in Australia in 2013 until August 2018, the applicant was studying constantly, except for a period of 4 months. This shows that his psychological condition was not such that it prevented him from studying. Rather, it was his financial difficulties that led to his troubles.
It is difficult to reconcile these financial difficulties that all commenced with the Bachelor of Hotel Management course. As the applicant confirmed at the hearing, he and his parents were aware of the tuition fees of both the Diploma of Hospitality Management and the Bachelor of Hotel Management before the applicant even travelled to Australia. Since ceasing enrolment in the Bachelor of Hotel Management course in 2014, he has gone on to enrol in a number of courses. When one looks at the total amount the applicant has spent on tuition fees since 2014, it comes in at around $31,000. This figure is close to the cost of the original Bachelor of Hotel Management course.
It is the responsibility of a visa holder to ensure sufficient funds to both fund his living expenses and tuition fees. The applicant has spent a significant amount of money on his education in Australia since arriving in 2013, despite claiming financial difficulties.
Furthermore, the applicant has made no attempt since 22 August 2018 to resume his studies. He does not appear to be genuinely motivated to continue studying but is focussed on work and his relationship with Ms Tiricovski, which began approximately a year and a half ago. He could have made a further attempt at the relatively inexpensive English language course (at $1300 to $1500 for 6 weeks) and attended all of the classes in order to be eligible for enrolment in the Bachelor of Accounting course at Holmes Institute. But he has not done so.
In light of the above circumstances, the Tribunal gives this weight in favour of cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly some weight is given in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said that it would affect him financially if he has to return home with empty pockets. He said emotionally, it will be hard if he has to return home, particularly because he will not be able to see his partner. He said if she goes to Pakistan with him, he does not think it will be safe for her. He said returning to Pakistan will be “hard” for his depression.
The applicant’s partner, Melissa Tiricovski, gave evidence that she met the applicant towards the end of 2017 when they were both working together at Dalton House. Their friendship developed into a romantic relationship approximately one and a half years ago. She said she does not want to see him leave Australia. She said that around this December 2018, the applicant went quiet (whereas before he was a loud, funny and carefree person) when he was trying to enrol at Holmes Institute. Ms Tiricovski said that they are planning to spend the rest of their lives together so the visa cancellation has been hard on them. She does not think she will go with him to Pakistan as she has safety concerns and also because her family is in Australia. But she was planning on going to Pakistan on holiday with the applicant to meet his family. She said that she really does not want to lose him.
Mr Coote submitted that cultural issues would come into play in the applicant returned to Pakistan with a Christian wife. This could cause problems for both him, his family and for his partner.
The Tribunal accepts that the applicant will suffer hardship for a number of reasons if his visa is cancelled. This is includes financial and emotional reasons, in addition to what would effectively be the end of his relationship with Ms Tiricovski, given her evidence that she does not intend on going to live in Pakistan with him. Accordingly, the Tribunal gives this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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 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
The applicant gave no evidence about any legal consequences for her, nor did he make any submissions about this. However, the applicant and his partner’s evidence confirmed that they have no children together and accordingly, no other member of the family unit will have their visa cancelled by operation of law. His partner is an Australian citizen.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. While the applicant could make another student visa applicant offshore, he would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations
It was submitted that the applicant and his partner ought to have been advised to have lodged a partner visa before the student visa was cancelled, however Mr Coote confirmed that there are no other visa applications on foot, although they are still considering applying for a partner visa in the future.
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. Mr Coote stated that there were demonstrative international obligations although he had not had time to research the issue of Christians living in Pakistan (in the case of the applicant’s partner if she were to return to Pakistan with the applicant). The applicant has not made an application for a protection visa, or any other type of Australian visa. Nor has the applicant or his representative raised any concern about any barriers that would prevent her from applying for another type of Australian visa.
Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. In reaching this conclusion, the Tribunal has found that the applicant’s purpose for staying in Australia is not to study but rather to continue with his relationship with his Australian partner and to make a life for himself here with her, that he lacks a compelling need to remain in Australia and that the circumstances in which the ground for cancellation arose militate in favour of cancelling the visa.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9

[2020] AATA 1448

10 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice