Bin Tariq (Migration)

[2020] AATA 2756

Bin Tariq (Migration) [2020] AATA 2756 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Talha Bin Tariq

CASE NUMBER:  1908546

HOME AFFAIRS REFERENCE(S):          BCC2018/5226625

MEMBER:Wendy Banfield

DATE:29 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2020 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – unsatisfactory course progress – consideration of discretion – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Maan v MIAC (2009) 179 FCR 581

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 April 2019 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 had been reported by his education provider as not achieving satisfactory course progress which is a breach of condition 8202 and a ground for cancellation under s.116(1) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Pakistan and is currently 23 years old. He came to Australia in September 2015 as the holder of a Subclass 573 Student visa. On 18 October 2018 the applicant’s education provider cancelled his Confirmation of Enrolment (CoE) and reported him for not maintaining satisfactory course progress. The Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa on 22 February 2019 and the visa was subsequently cancelled on 5 April 2019.

4. The applicant made submissions to the Department that have been taken into account in this decision. The evidence consisted of copies of the following documents:

   ·     'The Government of Punjab Pakistan', Death Registration Certificate in the name of Mushtaq Ahmad, date of death 27 June 2017;

   ·     Letter dated 26 February 2015 from Tiffany M. Reichert PhD, UNSW Counselling and Psychological Services, in relation to the applicant. (The applicant advised the date should be read as 2016).

   ·     'Statement of results' issued by Merryland International School, June 2014 in the name of the applicant;

   ·     'Board of Intermediate and Secondary Education, Lahore' dated 12 September 2015, in the name of the applicant;

   ·     Two 'Letter of Offer' documents dated 29 September 2018 and 30 January 2019 issued to the applicant by KOI for a Bachelor of Information Technology course.

5. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.

   The hearing

6. The applicant confirmed he came to Australia in 2015 with the intention of studying a university foundation course and a bachelor’s degree. The applicant advised he had completed high school in the United Arab Emirates (UAE) while his family were living there, and he was an excellent student. Although there are universities in Dubai, the applicant claimed the cost was the same and he wanted to gain further experience.  He said his father has IT qualifications and pays for the fees and living expenses in Australia.

7. The applicant claimed he enrolled in the foundation course in engineering but did not have proper guidance. He said after moving to Australia he became homesick and travelled back to Dubai often. According to the applicant, when the university issued him with a notice regarding his study progress, his grandfather was sick. He provided a death certificate to his education provider, but the applicant said he had not kept up with the study requirements. The applicant submitted he was under pressure as the eldest child in a well-educated family with siblings still at school.

8. According to the applicant he had taken an English course then enrolled in KOI after Charles Sturt University (CSU) and completed one semester of study. However, his evidence was that CSU reported him for unsatisfactory progress. The applicant agreed there had been grounds to cancel his visa.

9. Regarding any compelling reason why his visa should not be cancelled, the applicant said he has since applied to universities in the UAE and Australia. He claimed if does not complete his studies his family will disown him as his siblings and cousins are doing well. The applicant claimed his father has sent him a large sum of money for tuition as well as for a car and accommodation. The applicant said he has also worked part-time in Australia in IT support, cleaning and dishwashing. He explained that he had to get out of the house, or he would be depressed otherwise. The applicant confirmed he had not completed his studies because KOI were notified of his visa cancellation and did not let him continue, however, he declare they would be prepared to readmit him.

10. In terms of the degree of hardship that may be caused by his visa being cancelled, the applicant said there would not be any financial hardship but psychologically there would be. The applicant said his brother is currently at UNSW and he lives with his uncle and aunt. He said he never thought it would be this hard in Australia and referred to having submitted evidence regarding his mental health.

11. The applicant was asked if he understood the legal consequences of cancellation and he said he just needs to complete his studies and he will leave Australia. The applicant then advised he cannot return to live in the UAE and would have to go back to Pakistan. He added that he had moved to UAE in 2002 and if he had been admitted to a university there he would have finished by now.

12. 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

13. 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?

14. 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).

15. In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

16. For this requirement, it is the certification by the education provider as to breach of its course progress policies that constitutes the breach of condition, and not the unsatisfactory progress itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].

17. The evidence indicates that on 18 October 2018, the applicant’s education provider Charles Sturt University certified the visa holder as ‘Not achieving satisfactory course progress’ in accordance with section 19 of the Education Services for Overseas Students (ESOS) Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The certification was in relation to the applicant’s Bachelor of Information Technology (Study Group Australia) course.

18. As the education provider has certified the applicant as not achieving satisfactory course progress within the terms of condition 8202(3)(a), the applicant has not complied with condition 8202(3).

    Consideration of the discretion to cancel the visa

19. 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

20. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

21. During the Tribunal hearing the applicant was invited to make submissions regarding his any compelling need to remain in Australia. The applicant submitted he must complete his studies, or his family will disown him. He indicated his siblings and cousins are doing well academically and his father has sent him significant funds for his education and living expenses. The applicant also stated in his written submission to the Department that he is the guardian of his 17-year-old brother who is a student in Australia and lives with an uncle and aunt.

22. The Tribunal considered the applicant’s evidence but is not satisfied there is no other option than studying in Australia. The applicant advised he has applied to study in the UAE and has not given any reason why he could not study in his home country. While the Tribunal accepts the applicant feels responsible for his brother, it appears there are other means of family support available for the applicant’s sibling. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

23. The Department received an allegation that the applicant did not comply with the requirements of a student visa because he was seeking full-time work in Australia but there is no independence evidence before the Tribunal that the applicant has not complied with other visa conditions and this has taken this into account. However, certification by an education provider that an applicant has not achieved satisfactory course progress is a fundamental breach of a student visa and weighs against the applicant in this case.

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

24. During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant referred to there being psychological hardship as a result. This was said to be because of the family pressure upon him and because his brother is currently at UNSW. The applicant had submitted evidence to the Department about his mental health which the Tribunal considered. The Tribunal accepts there will be a degree of hardship caused to the applicant if his visa is cancelled and gives some weight in his favour in this regard.

25. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

26. The applicant’s visa was cancelled because his education provider reported him for not making satisfactory course progress while enrolled to study. The applicant gave reasons for this, including that his grandfather was ill and passed away, he found it difficult to adjust when he left his family to come to Australia and his mental health was affected.

27. The letter from a psychologist at UNSW dated 26 February 2016 outlines the applicant’s difficulties transitioning to independence and his subsequent mental health issues. The Tribunal accepts the applicant faced some challenges in Australia and that he sought help for his difficulties, including counselling. It is noted though that the psychological problems that the applicant claims affected his studies occurred in early 2016 while his education provider reported him on 18 October 2018. In the counselling letter the applicant was reported as wanting to take a break from study, after which he was confident of performing academically. However, more than two years later, the applicant was reported for unsatisfactory progress.  

28. The Tribunal accepts the applicant may have faced some issues adjusting to independent living in Australia and that he would have been adversely affected by the death of his grandfather. Nevertheless, the applicant’s response to these matters was within his control. It was open to him to apply for appropriate leave or defer his studies until he was in a position to continue, or change his study path to an area he would be successful in. Although the applicant encountered some stressful events, they are not adequate reasons for the applicant fail to comply with the conditions of his student visa which requires visa holders to progress academically. For these reasons, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

29. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

30. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

31. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

32. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

33. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

34. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

35. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

    Other issues

36. The Tribunal notes the Department received an allegation from a member of the public stating the applicant had sought full time work in Australia and was not enrolled to study at the time. Due to the lack of detail or any independent evidence that the applicant was not complying with visa conditions, the Tribunal has not relied on the allegation in any way.   

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

    DECISION

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

    Wendy Banfield
    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.