Bilawal (Migration)

[2018] AATA 5683

Bilawal (Migration) [2018] AATA 5683 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Makhdoom Bilawal

CASE NUMBER:  1823493

HOME AFFAIRS REFERENCE(S):           BCC2018/1903425

MEMBER:Ann Duffield

DATE:2 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 November 2018 at 1:34pm

CATCHWORDS

MIGRATION – cancellation – Subclass 500 (Student) visa – not enrolled in relevant course for nine months – mental health issues – lack of evidence – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
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 7 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was non-compliant with clause 8202(2)(a) which requires him to be enrolled in a full time registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 November 2018 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.

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

7. The applicant is a citizen of Pakistan born on 2 October 1986 (22 years old). He first arrived in Australia on a student visa on 19 December 2014. He was granted subsequent visas over time with his last substantive visa having been granted 28 June 2017. That visa was cancelled on 7 August 2018 as the applicant had not been enrolled in a relevant course of study since 9 October 2017.

8. In his response to the delegate’s notification of intention to consider cancelling his visa, the applicant stated that he had suffered psychological pressure that led to depression as a result of his divorce in 2013.  Her claims to have sought treatment from his doctor via video conferencing on a regular basis. He has provided no evidence of this.

9. The applicant has claimed that he was so depressed he was unable to leave the house and he stopped speaking to everyone. He says that it never occurred to him that he was breaching his visa conditions. He claimed that when he tried to rectify things his grandmother passed away and he was heartbroken and stressed again.

10. The applicant enrolled in a course subsequent to the department informing him that they intended to consider cancelling his visa. This course commenced on 31 July 2018.

11. The applicant provided the Tribunal with a copy of his written submission to the delegate dated July 2018. In that the applicant again emphasised his mental ill health and treatment via video-conferencing with a psychologist. He has again provided no evidence of his ill health or of his claimed consultations.

12. The applicant claimed he had difficulty with his ex –wife and his grandmother died. He has provided no evidence of either of these matters to support these claims.

13. The applicant further claimed that his family came to Australia for a short stay to help him with his stress. It was at that time his grandmother died and was cremated without his knowledge. He claims that he was broken hearted and could not cope.

14. He claims that he has successfully overcome his psychological issues and his divorce issues have also been settled. He claims no that he will be able to focus his attentions on his studies and return home to be a pride of his family instead of a failure. He says that all his family members are high achievers and live in the US and Canada.

15. At the hearing the applicant provided the Tribunal with a Confirmation of Enrolment from Everthought College of Construction indicating that the applicant has enrolled in a Certificate III in Wall and Floor Tiling commencing on 29 October 2018. He also provided a statement dated 2 November 2018.

16. In his statement the applicant reiterates the claims of his previous statement to the delegate and adds that he is an active member of the community and intends to depart Australia after he completes his course.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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. Relevantly, 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?

    s.116(1)(b) - non-compliance with conditions

18. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 is attached to the applicant’s visa. This condition requires that the applicant be enrolled in a relevant course of study at a registered institution.

19. The enrolment requirement in condition 8202 is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment. Furthermore, the enrolment must relate to and be an enrolment capable of satisfying the criteria and conditions of the visa.

20. Despite being currently enrolled in a relevant course of study, the applicant was not enrolled for a period of 9 months.

21. At the hearing the applicant told the Tribunal that he had begun not begun his course at Lifetime International Training College because it had been cancelled as a result of his visa cancellation. His previous courses of study had been at Griffith University.

22. Asked if he had completed any of his courses of study at Griffith University, or anywhere else, the applicant said that he had only successfully completed his language course. He claims that the course at Griffith required a great deal of reading which he found difficult. Whilst he passed several units of his first semester he has failed all his subsequent courses. He claims that he met the attendance requirements but was unable to successfully complete the course requirements.

23. The applicant told the Tribunal that he obtained a job at Red Rooster about six months after arriving in Australia but has not worked since around June or July 2016. He said that his father provides him with financial support. The Tribunal asked the applicant if he had discussed his difficulties with his studies with his father and he said that his father had just told him to concentrate on his studies.

24. The applicant told the Tribunal that he was unable to complete his studies or enrol in the relevant class because he did not know that was a requirement of the visa. The Tribunal put to the applicant that his ignorance of his visa conditions did not give it great confidence that he would abide by any conditions attached to subsequent visas. The applicant said that he was now aware of what conditions are attached to student visas.

25. The applicant claimed that the studies in which he had enrolled were too difficult for him and this, combined with the stress of his personal problems led him to fall into a deep depression where he was unable to do anything. He told the Tribunal that he was not working at this time but still managed to attend his courses.

26. The Tribunal asked the applicant if he had sought help for his psychological problems and he said that he had not. When reminded that he had told the delegate that he had video conferences with a psychologist the applicant said that this was a family doctor in Pakistan. He said he had several video conferences with this doctor. Asked if he had sought help from a doctor in Australia he said that he had not. Asked if he had any evidence of his conferences with his doctor in Pakistan he said he did not.

27. The applicant told the Tribunal that he had not been diagnosed with a specific mental illness and was not taking medication. The applicant told the Tribunal that he felt better now and was confident he could complete his new Certificate II course in wall and floor tiling because it was easy and did not require him to do any reading. Asked if this was not something he could do in Pakistan, the applicant said that there were no courses for this in Pakistan but people learned just by doing it.

28. The applicant’s study history is patchy at best. He has only successfully completed his English language course in the four years he has been visaed to study in Australia. He has moved from a Masters course at Griffith University to a Certificate III in floor and wall tiling.

29. Be that as it may, the applicant has admitted that he has not been enrolled in the relevant course for a considerable period of time.

    CONSIDERATION OF DISCRETION / CONCLUSIONS

30. 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 the visa should be cancelled.

    Consideration of discretion

31. 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’.

32. The Tribunal has considered the purpose of the applicant’s travel and stay in Australia, including whether he has a compelling need to travel to or remain in Australia. The applicant claims that he travelled to Australia to obtain a higher degree. He first enrolled in a Masters Course at Griffith University but has now enrolled in a Certificate III course in floor and wall tiling. Whilst a master’s degree of the calibre the applicant sought may not be available to him in Pakistan, it seems to the Tribunal that the skills which the applicant is seeking to obtain in Australia at the present time are ones that could easily be obtained anywhere in the world, including Pakistan. He has not successfully completed any except one course he has enrolled in and has said that he is incapable of obtaining a higher degree which he originally sought.

33. The Tribunal is not satisfied that the applicant continues to have a compelling need to travel to or remain in Australia. The course of study he is currently undertaking is one for skills he can obtain in Pakistan if that were his goal. He has not worked since around June or July 2016. The applicant has no family in Australia, and on his own evidence has no partner or children to support and no other person to support, either financially or emotionally, in Australia or Pakistan, that would constitute a compelling need for him to remain in Australia.

34. The Tribunal has considered the extent of the applicant’s compliance with his visa conditions and found that he has not complied in the past and claimed to be ignorant of the fact that his visa required him to study. The applicant claims that he is now aware of visa conditions and would comply in the future. The Tribunal gains little satisfaction from his assurance.  In any case, the Tribunal gives this aspect neutral weight in favour of the applicant in its consideration of whether to exercise its discretion.

35. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant’s visa is cancelled. He has no children or spouse, or indeed anyone dependent upon him in Australia. His parents and other family members are considered by him to be well off and are professional people working in the USA and Canada and have not relied on his financial support in the past. The applicant claims that his failure to complete his studies in Australia will bring shame to himself and to his family. That may or may not be the case; however the applicant has not taken advantage of his apparently favourable family and financial circumstances to complete his studies in Australia. The Tribunal gives this aspect no positive weight in favour of the applicant.

36. The Tribunal has considered the circumstances in which the grounds of cancellation arose. The applicant claimed mental health issues, including depression, stress and anxiety but provided no evidence that he either suffered from these illnesses or that he was being – or indeed had sought – treatment for them. He has no diagnosed mental illness and is not medicated. In the absence of any evidence supporting his claims of mental illness and depression such that he could not study, the Tribunal cannot be satisfied that the applicant could not study for the reasons claimed.

37. The applicant has provided no evidence of his grandmother’s death and even if she did pass away, the Tribunal does not give this aspect sufficient weight such that it would persuade the Tribunal to exercise its discretion to not cancel the applicant’s visa.

38. The Tribunal has considered the applicant’s past and present behaviour towards the department and found that he has not engaged with the department in respect of his visa conditions and the need to comply with them. There is no evidence that he sought to engage with the department when his alleged mental health issues prevented him from attending to his studies. Nor did he seek to engage with his education provider. This gives the Tribunal little confidence that the applicant will give these matters the proper consideration in the future should his visa not be cancelled.

39. The Tribunal has considered whether there would be consequential cancellations under s.140 and found there to be none.

40. The Tribunal has considered 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. If the applicant’s visa is cancelled, he will be liable for detention if he does not take relevant action. If he does not voluntarily depart Australia he may be prevented from applying for further visas whilst in Australia and would have limited options to return. The Tribunal considers that this is the intention of the Migration Act and therefore gives this consideration little weight in favour of the applicant.

41. The Tribunal has considered whether any international obligations, including non-refoulement and best interests of the children which would be breached as a result of the cancellation and found no breach. The applicant has no children and no dependents either in Australia or elsewhere that would be disadvantaged such that it would persuade the Tribunal to exercise its discretion and not cancel the applicant’s visa.

42. The applicant has no strong family, business or other ties in Australia which the Tribunal needs to consider. There are no other relevant matters for the Tribunal to consider.

43. Considering the circumstances both individually and cumulatively in the context of the entirety of the applicant’s circumstances, the Tribunal concludes that the visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Ann Duffield
    Senior Member