Bajwa (Migration)

[2018] AATA 5718

Bajwa (Migration) [2018] AATA 5718 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Burhan Aamer Bajwa

CASE NUMBER:  1709639

HOME AFFAIRS REFERENCE(S):           BCC2017/909254

MEMBER:Joseph Lindsay

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 December 2018 at 3:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa –  Subclass 573 Higher Education Sector – applicant was not enrolled in a registered course – applicant does not hold a current confirmation of enrolment certificate (COE) -– discretion to cancel visa – applicant’s circumstances warrant the discretion to not cancel the applicant’s student visa – decision under review set aside

LEGISLATION
Education Services for Overseas Students Act, s 19
Migration Act 1958, ss 48, 116(1)(b), 140
Migration Regulations 1994, Schedule 2, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 April 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course since 8 October 2016. The delegate went on to consider whether the visa should be cancelled and weighed the factors for and against before deciding 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 provided a copy of the delegate’s decision with his application for review.

3. The applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments. The applicant gave evidence in English and did not require the assistance of an interpreter.  

4. The applicant was represented in relation to the review by his registered migration agent, Mr Chris Oldham of Carina Ford Immigration Lawyers. Mr Oldham attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. At the hearing the applicant indicated that he had not remained enrolled in a registered course of study and that in doing so he breached condition 8202(2)(a) of his student visa.

10. The Tribunal also notes that in written submissions provided by the applicant’s representative to the Tribunal on 7 February 2018, and on 24 September 2018, the applicant indicated that he agreed that a ground for cancellation of his student visa exists and that he was in breach of condition 8202 of his student visa.

11. On the evidence before the Tribunal, the Tribunal finds that there are grounds for cancellation of the applicant’s student visa where he was not enrolled in a registered course since 8 October 2016 and in doing so he did not comply with condition 8202(2)(a) of his student visa.  

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

13. 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

14. In response to this issue, the Tribunal notes the applicant’s submissions dated 7 February 2018 at paragraphs 40 and 41, as well as the applicant’s submissions dated 24 September 2018 at paragraph 22(h). These submissions indicated that the applicant’s purpose was to come to Australia to complete the Bachelor of International Business at La Trobe University and then return to Pakistan to work in his family business. The submissions also indicated that the applicant comes from a wealthy Pakistani family that has business interests in Pakistan, and that the applicant’s intended course (in International Business) has application in his family’s business.

15. The Tribunal notes that the applicant does not hold a current confirmation of enrolment (COE). However, the applicant indicated he has not sought to study whilst waiting for the Tribunal proceedings based on advice he received that it is unlikely he would be able to demonstrate to the Department that he has a compelling need to study (whilst he is on a Bridging Visa). The applicant also indicated that the cost of engaging professional assistance to allow him to study may not bring him any benefit. The submissions indicated that, due to his family background and intent to work in the family business on his return to Pakistan, the applicant has more to lose remaining in Australia for any length of time past his planned studies.

16. The Tribunal notes that the applicant’s visa was due to expire on 30 August 2019, and if the applicant is going to continue his studies without being in breach of condition 8202 he will need a new COE and he will need to apply for another visa, noting the course is three years’ duration.

17. In its assessment of the above information, the Tribunal is satisfied that the purpose of the applicant’s travel to and stay in Australia is to study the Bachelor of International Business at La Trobe University and then return to Pakistan to work in his family business.

18. Accordingly, the Tribunal gives medium weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

19. In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions apart from the condition that required him to remain enrolled in a registered course of study – condition 8202. This is also reflected in the written submissions from the applicant dated 24 September 2018 at paragraph 31.

20. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

21. In response to this issue, the Tribunal notes the applicant’s submissions dated 7 February 2018 at paragraphs 45 to 48 indicating that the applicant would face hardship if his visa was cancelled.

22. In the hearing, the applicant expressed similar sentiments to those referred to in his written submissions.

23. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The circumstances in which the ground for cancellation arose

24. The applicant’s circumstances in relation to which the ground for cancellation arose are somewhat dramatic.

25. In summary, the applicant claimed:

    ·     He went back to Pakistan on 19 January 2017, and shortly after that a gas explosion killed members of his extended family.  

    ·     In the ensuing rush to help his relatives at the hospital in Islamabad, he fell on the stairs and injured himself.

    ·     His injuries caused him pain and suffering and demonstrate that his non-compliance with his visa conditions (in this case condition 8202) was an exceptional circumstance beyond his control.

26. The applicant provided a range of information in support of his claims. Key amongst these documents was a medical certificate issued by Dr Imran Sikander Khan, who is a Professor of Trauma and Orthopaedics at the Shaheed Zulfiqar Ali Bhutto Medical Hospital in Islamabad, Pakistan. This medical certificate attested to the injuries sustained by the applicant. This medical certificate indicated that Dr Khan treated the applicant as a result of his fall at the hospital.

27. This medical certificate was dated 17 January 2017 – two days before the applicant was in Pakistan. The Tribunal queried this discrepancy with the applicant and his representative at the hearing. In response, the representative provided a further medical certificate from Dr Khan dated 19 September 2018 indicating that there was an error in the previous certificate and that he did treat the applicant on 21 January 2017. In his written submission, the representative invited the Tribunal to contact Dr Khan to verify the certificate.

28. The Tribunal has taken steps to check whether the medical certificates are authentic. Advice was provided to the Tribunal by the Department on 12 November 2018 that the medical certificates are authentic.

29. Accordingly, the Tribunal places high weight on the medical certificates issued by Dr Khan. The Tribunal finds that the applicant’s claimed circumstances in which the ground for cancellation arose appear to be credible and it places high weight on those circumstances.

    Past and present behaviour of the applicant towards the Department

30. The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

31. The Tribunal accepts that the applicant has no dependents on his visa such that would be affected by a cancellation under s.140 of the Act.

32. The Tribunal places low weight on this information in the applicant’s favour.

    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

33. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

34. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

35. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Pakistan.

36. The Tribunal accepts that the applicant will receive a three year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

38. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

39. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

40. The Tribunal asked the applicant whether there were any further matters that he wanted to raise. He indicated he wanted to do his Bachelor of International Business to expand his mind and to ultimately go back to Pakistan to work in his family business.

41. The applicant has indicated that there is no impediment to him completing his studies and returning to Pakistan.

    Conclusion

42. Whilst the Tribunal is satisfied that since 8 October 2016 the applicant has not been enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2)(a), the Tribunal is satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    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.