Baluch (Migration)

[2018] AATA 257

Baluch (Migration) [2018] AATA 257 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rehan Sattar Baluch

CASE NUMBER:  1615828

DIBP REFERENCE(S):  BCC2016/2804941

MEMBER:Mr S Norman

DATE:13 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2018 at 12:01pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Applicant did not attend hearing – Not been enrolled in a registered course of study – Substantial gap in study – Personal circumstances – Death of Uncle

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 362B

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 23 September 2016 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). The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. The Department delegate’s decision was lodged with the Tribunal.

3. On 15 January 2018, the Tribunal sent the applicant a hearing invitation letter (dispatched to the email address authorised for service) advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 February 2018. No response to the Tribunal’s hearing invitation letter was received. One SMS (hearing reminder) text was sent to the applicant’s claimed mobile phone (on 6/02/2018); however, that text was subsequently noted as having failed to be delivered. Also, the applicant has made no contact with the Tribunal since lodging his merits review application and no agent has been authorised to act.   

4. In its abovementioned letter of 15 January 2018, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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. 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 applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 16 December 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 12 September 2016, the applicant was advised that information in the Provider Registration and International Student Management System (PRISMS), indicated that he had not been enrolled in a registered course of study since 30 July 2015. Further, that it therefore appeared the applicant had breached condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

10. In reply, the applicant said this was the first time he had studied abroad; in Australia he experienced culture shock and was struggling to cope; he did not perform well at College; he began to adapt to life and study in Australia; he made friends at College; his uncle in Pakistan passed away at the age of 42 years; this news “struck him hard since his uncle was very close to him” and a “second father”. However, the applicant did not dispute that the grounds for cancellation existed.

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

    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 to exercise its discretion to cancel the visa. 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).

13. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal accepts the applicant’s initial intention in travelling to and residing in Australia, was for the purpose of study.

14. Regarding the extent of the compliance with the conditions to which the applicant’s visa was granted, at the time of the Department decision (being 23 September 2016) the applicant had not been enrolled in a registered course of study since 30 July 2015. The Tribunal believes this breach to be significant. The Tribunal also notes the purpose of the Student visa is to allow non-citizens to study in Australia and this is an obligation which an applicant is made aware of at the time of grant.

15. Regarding the circumstances in which the grounds for cancellation arose, as noted above the applicant said this was the first time he had studied abroad; in Australia he experienced culture shock and was struggling to cope; he did not perform well at College; he began to adapt to life and study in Australia; he made friends at College; at this time his uncle in Pakistan passed away at the age of 42 years; this news “struck him hard since his uncle was very close to him” and a “second father”. However, and as noted in the delegate’s decision, Department records indicated the applicant first entered Australia on a Student visa in 2006, and therefore I am not satisfied that (ie) culture shock and needing to adapt to life in Australia or needing to make friends, prevented the applicant from maintaining his enrolment in a registered course of study.

16. With respect to the death of his uncle, the Tribunal notes the uncle passed away on 9 July 2015 (at which time the applicant was 31 years old). The Tribunal also notes there is no corroborating evidence that the person referred to on the Death certificate lodged,[1] was actually related to the applicant. Be that as it may, and assuming the person referred to was the applicant’s uncle, I accept that in many cases the death of a close relative can have a negative effect on a person. However, as did the delegate, the Tribunal notes there is no evidence the applicant contacted the Department to seek information as to possible options regarding his circumstances, including deferment. There is also no evidence to suggest the applicant sought professional help to manage his claimed mental distress. The Tribunal therefore is not satisfied the uncle’s claimed death prevented the applicant from pursuing his studies in Australia, or remaining enrolled in a registered course of study.

    [1] DIBP – folio 32.

17. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the applicant said his parents ‘paid a lot of money and resources for him to study in Australia’; he would feel like he ‘let his parents down’; if his parents found out about his present circumstances they would be “a devastated and disappointed”; his plans are now shattered; if he returned to Pakistan he would struggle to find work as he needs a degree or qualification from a recognised College or University from countries like Australia; he was (then) 32 years of age and his “career should be starting to pick up however this has not been the case”. However, and after considering all the findings made herein, the Tribunal was not satisfied the evidence of the applicant’s parents and/or the claimed ‘shattering of his plans’ should prevent it from exercising its discretion in this case.

18. Next, the Tribunal accepts the applicant (or his family) may suffer some financial hardship if his visa is cancelled. As an unlawful non-citizen, he would then be liable to be detained under s.189 and removed under s.198 of the Act. However, and again based on the evidence before me I am not satisfied the applicant would be subject to indefinite detention. Further, he would be able to apply for a Bridging visa in Australia which would allow him to remain in the community while he finalised his affairs.

19. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation).

20. Next, the applicant said he was feeling depressed, did not leave his house and did not attend courses; there was a long period he did not go anywhere; he was in a state of denial; he said there was a period in his life where he was “hiding from his problems and struggling to cope with the reality”; but now he is willing to make changes. However, at (then) 32 years of age the Tribunal may commonly anticipate that if the applicant was wishing to advance his career, he may have obtained assistance which could have overcome the problems that allegedly caused him to be in breach of his visa conditions. On the evidence before it, the Tribunal does not accept the applicant’s health prevented him from maintaining enrolment in a registered course of study in Australia.

21. Next, there is no evidence before the Tribunal that the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that there will be any consequential cancellations if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Mr S Norman
    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.