BAIG (Migration)

[2020] AATA 3549

BAIG (Migration) [2020] AATA 3549 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mirza Ehtesham Ahmed BAIG

CASE NUMBER:  1819419

HOME AFFAIRS REFERENCE:               BCC2018/930735

MEMBER:L. Symons

DATE:25 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 June 2020 at 3:35pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8202–had not been enrolled in a registered course of study – mother’s health situation – applicant didn’t take reasonable steps to maintain his enrolment–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2018 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 was not enrolled in a registered course since 20 September 2017. He applied to the Tribunal for a review of that decision on 4 July 2018.

3. The applicant appeared before the Tribunal on 21 January 2020 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 breach 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 was granted a subclass 573 Student visa on 24 August 2015. This visa was subject to a number of conditions including condition 8202. On 23 May 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had breached condition 8202(2) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

9. In his response dated 18 June 2018, the applicant provided details as to why his visa should not be cancelled. He also provided to the Department an IELTS test dated 26 March 2015, a Secondary School Certificate examination dated 7 July 2014, a Board of Secondary Education statement dated 23 July 2012, a Statement of Marks dated 15 January 2015, a Certificate of English language proficiency from Holmes Institute and a copy of the bio data page of his Pakistani passport issued 22 November 2012.

10. The applicant provided the Tribunal with a copy of the Decision Record dated 27 June 2018 from the Department of Immigration (the Department) and a copy of the bio data page of his Pakistani passport issued on 22 November 2012. He requested and was granted further time after the hearing to provide additional evidence. He provided the Tribunal with a Confirmation of Enrolment (COE) for a Graduate Diploma of Management commencing 20 September 2021 and ending 19 February 2023.

11. The Department found that the applicant had not been enrolled in a registered course of study since 20 September 2017. The Tribunal asked the applicant whether he agreed with that and he responded yes. He stated that he travelled to Pakistan and was not in a good situation when he returned to Australia. He stated that he understood that if he was not enrolled in a registered course of study, he had breached condition 8202 of his Student visa.

12. The records of the Department of Education indicate that the applicant was enrolled in a Diploma of Information Technology from 3 October 2016 to 29 September 2017 and his enrolment in that course was cancelled on 20 September 2017 for non-payment of fees. He then enrolled in a Diploma of Leadership and Management from 24 September 2018 to 23 March 2020. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he was not enrolled in a registered course of study from 20 September 2017 to 23 September 2018 and that he had breached condition 8202(2) of his Student visa.

13. The applicant responded that the reason why he was not enrolled was because of his family issues. He stated that his mother was sick, and he was “mentally disturbed”. He stated that a lot of things happened in those 2 years. He stated that his education provider did not inform him about the fees. He stated that he is currently studying a Diploma which he will complete in March 2020. He stated that he will then study an Advanced Diploma leading to a Bachelor of Business degree. He stated that he has never done anything illegal or broken any rules. He stated that he has not received any fines. He stated that if the Tribunal requires a COE for a Bachelor’s degree, he is able to provide that.

14. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study between 20 September 2017 and 23 September 2018 and accordingly has not complied with condition 8202(2) of his Student visa.

    Consideration of the discretion to cancel the visa

15. 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’.

    Purpose of the visa holder’s travel to and stay in Australia. Did the visa holder have a      compelling need to travel to or remain in Australia?

16. In his response to the NOITCC, the applicant stated that he came to Australia to study and get an Australian qualification so that he could return to Pakistan and have better employment opportunities and beat local competition.

17. During the hearing, the applicant gave evidence that his purpose in coming to Australia was to get a degree and to return to Pakistan. He stated that the level of education in Pakistan is not that great.

18. The Tribunal asked the applicant why he had not completed any studies in Australia other than an English course. He responded that he was enrolled in a Bachelor of Business degree and started going to class. He stated that he could not understand anything, so he switched to accounting. He stated that he then switched to Information Technology and was going to attend that course. He stated that he returned to Pakistan and “then nothing”. He stated that he undertook two semesters of the Information Technology course and they cancelled his COE.

19. The Tribunal asked him why he did not return to his family in Pakistan if he came to Australia to study, was not studying and was having problems coping in Australia. He responded that his mother told him not to return to Pakistan. He stated that she told him to finish his studies and then return to Pakistan. When asked whether there was any reason why he needed to remain in Australia, he responded that he wants to do a Bachelor’s degree. He stated that he has almost finished a Diploma, then wants to do an Advanced Diploma followed by a Bachelor’s degree.

20. The records of the Department of Education indicate that the applicant was enrolled in a General English Program from 7 September 2015 to 13 November 2015 and completed that course. He then enrolled in a Bachelor of Business degree from 9 November 2015 to 31 July 2018 and his enrolment in that course was cancelled on 10 September 2015 for non-commencement of studies. He then enrolled in another Bachelor of Business degree from 9 November 2015 to 31 July 2018 and his enrolment in that course was cancelled on 13 April 2016 as he changed to a different course. He then enrolled in a Bachelor of Professional Accounting from 4 April 2016 to 31 December 2018 and his enrolment in that course was cancelled on 12 July 2016 for non-payment of fees.

21. The records of the Department of Education indicate that the applicant was then enrolled in a Diploma of Information Technology from 3 October 2016 to 29 September 2017 and his enrolment in that course was cancelled on 13 October 2016 because he changed his enrolment. He then enrolled in a Diploma of Information Technology from 3 October 2016 to 29 September 2017 and his enrolment in that course was cancelled on 20 September 2017 for non-payment of fees. He then enrolled in a Diploma of Leadership and Management from 24 September 2018 to 23 March 2020.

22. The Tribunal put the above information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had no intention of studying, had not fulfilled the purpose for which the Student visa was granted to him and his Student visa should be cancelled. The Tribunal noted that the cancellation of his COE on 20 September 2017 was for non-payment of fees and not for any reason to do with his mother as claimed.

23. The applicant responded that it was not about fees. He stated that the criteria for studying in Australia are different to the criteria in Pakistan and he could not understand. He stated that he kept changing courses to find a course that was better for him but could not find one.

24. The Tribunal accepts that it would have been difficult for the applicant to adjust to studying in Australia. It is not clear to the Tribunal why he thought he could undertake a Bachelor degree in English in Australia after undertaking a short General English course. His evidence is that his purpose in coming to Australia was to obtain a degree and he was granted a subclass 573 Student visa for this purpose. He has not been enrolled in a Bachelor’s degree since 12 July 2016. The Tribunal is of the view that that is a considerable period of time during which he has not fulfilled the purpose for which the Student visa was granted to him.

25. The applicant gave evidence that if his Student visa is not cancelled his intention is to enrol in an Advanced Diploma followed by a Bachelor’s degree. He requested and was granted further time after the hearing to provide additional evidence. He provided evidence of a COE for a Graduate Diploma of Management (Learning) commencing 20 September 2021 but did not provide a COE for a Bachelor’s degree. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia.  

26. The Tribunal gives this consideration no weight in the applicant’s favour.

    The extent of non-compliance with visa conditions

27. In his response to the NOITCC, the applicant stated that he has always tried to adhere to his visa conditions. He stated that there was a gap in his studies because of his mother’s medical condition and other family issues.

28. The applicant was not enrolled in a registered course of study between 20 September 2017 and 23 September 2018. This is a considerable period of time during which he was in breach of condition 8202(2) of his Student visa.

29. The Tribunal asked the applicant whether he had breached any other condition of his Student visa. He responded that he did not and has never done anything illegal.

30. There is no evidence before the Tribunal to indicate that the applicant has failed to comply with any of the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.    

    Degree of hardship that may be caused

31. In his response to the NOITCC, the applicant stated that, if his Student visa is cancelled, he will have to face enormous pressure from his family because it will be shameful for him to return to Pakistan with a visa cancellation. He stated that it would have a bad effect on his mother who is already suffering from depression and her health could deteriorate.

32. During the hearing, the Tribunal asked the applicant what hardship may be caused if his Student visa is cancelled. He responded that if he returns to Pakistan, he would not be able to get a job. He stated that he will also not be able to enrol in any university and it would bring shame on him and his family.  

33. The Tribunal asked the applicant whether he considered these issues when he stopped studying. He responded that he was afraid of what would happen to his mother and to him. He stated that his heart kept pumping. He stated that his doctor did an ECG on him and everything was normal. He stated that he had a fever and his doctor advised him that he had anxiety and needed to sleep properly. He stated that his doctor advised him that if he did not get 8 hours of sleep, he would start losing his memory. He stated that he was maximising his sleep to get back to normal when he received the NOITCC.

34. The Tribunal accepts that the applicant and his family would suffer considerable hardship if his Student visa is cancelled. The Tribunal gives this consideration weight in his favour.  

    Circumstances in which the ground for cancellation arose

35. In his response to the NOITCC, the applicant stated that the reason why there was a gap in his studies was beyond his control. He stated that his mother was ill due to family problems. He stated that she was suffering from depression and anxiety and this made him worried. He stated that due to her situation and family issues he was not able to concentrate on his studies during that period. He stated that he was not able to tell his mother this because she was suffering from depression. He stated that he wanted to return to Pakistan to see her, but his mother advised him not to do so because of some escalated family issues. He stated that he was not able to study or concentrate on anything. 

36. During the hearing, the applicant gave evidence that the main reason why he was not enrolled in a registered course of study after September 2017 was because his mother became ill and he returned to Pakistan. He stated that she was depressed and was crying all the time. He stated that he has a 5-year-old brother and he is the eldest son. He stated that when his mother was stable, he returned to Australia. He stated that two days later she was in the same situation. He stated that “a lot of stuff” happened during that time.  When asked whether he informed his education provider of the problems he was having and sought their assistance, he responded no. He stated that he did not realise that he had to.

37. The applicant stated that he started getting anxiety attacks. When asked whether he saw a doctor about that, he responded that he did, and his doctor told him that he needed to sleep as he had not slept for 2 ½ days. He stated that his roommates kept cheering him up. He stated that he lost everything in those 2 years.

38. The Tribunal asked the applicant whether the situation was any different now. He responded that his mother is getting stable. He stated that he has done wrong. He stated that he is realising that what is important is his future. He stated that he needs to get educated, get a good job and support his family. He stated that he needs to catch up. He stated that he was a good student in Pakistan. When asked whether he consulted a student counsellor at his college, he responded no. When asked whether he spoke to the Department about the problems he was having, he responded no. He stated that he thought about it but did not.

39. Despite being given further time after the hearing to provide additional evidence, the applicant has not provided the Tribunal with any evidence of his mother’s illness, his family problems, his mental health issues or that he consulted a doctor in Australia.

40. The applicant’s explanation for why he was not able to study and why he was not enrolled in a registered course of study for a considerable period of time is not consistent with the records of the Department of Education. Those records indicate that his COE was cancelled on 20 September 2017 for non-payment of fees. He disagrees with this. The Tribunal would expect that if he had to return to Pakistan because of his mother’s illness and, on his return, was unable to study because he was having panic attacks and had explained this to his education provider, he may have been able to get his studies deferred without risking the cancellation of his COE. His failure to do this raises doubts about his claims that his mother was ill, and this was impacting on his health.  

41. The applicant remained in Australia on a Student visa without being enrolled in a registered course of study between 20 September 2017 and 23 September 2018. Even after he was sent a NOITCC on 23 May 2018, he delayed enrolling in a registered course for another 4 months. If he had mental health issues that were impacting on his ability to study, the Tribunal would expect him to have approached the Department and explain why he was not able to fulfil his responsibilities under his Student visa.

42. The Tribunal has doubts that this was the reason why the applicant was not enrolled in a registered course of study and unable to study. Despite his claim to the Department that he was not able to study or concentrate on anything, his evidence to the Tribunal is that he continued to work in Australia throughout that period. When the Tribunal raised as an issue his motivation for being in Australia, he responded that he was working 20 hours a week, and this was the only thing that cheered him up. He stated that he did not want to leave his job and the people there were great. He stated that it was one of his passions, so he did not leave work.

43. Having considered all the evidence, the Tribunal does not accept that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. The Tribunal gives this consideration little weight in his favour.

    Past and present behaviour of the applicant towards the Department

44. In his response to the NOITCC, the applicant stated that his past and present behaviour towards the Department has been good. He stated that he has never breached any visa conditions in the past. He stated that he has completed the studies he enrolled in. He stated that he has always respected the law and been a law-abiding citizen. This statement is inaccurate in that he has not completed the studies he enrolled in. As indicated in paragraphs 20 and 21 above, the only course he has completed since his arrival in Australia on 3 September 2015 is a short General English course. He is also not a citizen of Australia.

45. During the hearing, the applicant gave evidence that, other than for not complying with condition 8202, he has not had any problems with the Department in relation to non-compliance with visa conditions or in relation to providing incorrect information or false statements.

46. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.   

    Whether there would be consequential cancellations under s.140 of the Act

1. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

   Legal consequences of a decision to cancel the visa

2. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. 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 finalize his affairs in Australia before departing.

3. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

4. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

   Australia’s international obligations

5. The Tribunal asked the applicant whether there was any reason why he could not return to Pakistan. He responded that it would be difficult to get enrolled in a university. He stated that he would not be able to get a job. He stated that he does not want to return to Pakistan without a degree.

6. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

   Any other relevant matter

7. The Tribunal is not aware of any other relevant matter.

   CONCLUSION

8. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

   DECISION

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

   L. Symons
   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.