Butt (Migration)

[2019] AATA 6475

Butt (Migration) [2019] AATA 6475 (23 December 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Usama Butt

CASE NUMBER:  1707296

HOME AFFAIRS REFERENCE(S):          BCC2017/276191

MEMBER:Brian Camilleri

DATE:23 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

Statement made on 23 December 2019 at 3:37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment cancelled – no release letter – change of course – use of visa program to maintain residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 has not complied with a condition of his visa and had ceased his studies in the Diploma of Software Development since at least 30 December 2015 and failed to undertake a Higher Education Sector course, Bachelor of Information and Communication Technology which was cancelled. Further, the applicant had not re enrolled in another registered course to recommence his studies. 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 May 2019 to give evidence and present arguments. 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

4. 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 application has breached that condition, under s.116 (1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202

5. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   a.Be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   b.Has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   c.Has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3) (b).

1. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.  At the hearing before the Tribunal, the applicant was provided with a copy of the current Provider Registration International Student Management System (PRISMS) record. According to this record the applicant enrolled in the following courses from the time he arrived in Australia in 2014 until prior to the hearing:

   · Bachelor of Information & Communication

   Technology   22/02/2016 - 31/01/2018       Cancelled
   Cancelled Studies not commenced

   ·  Diploma of Software Development                13/07/2015 - 30/12/2015        Finished
   ·  Diploma of Software Development                13/07/2015 - 30/12/2015        Cancelled
   ·  Certificate IV in Programming   14/07/2014 - 30/06/2015        Finished

1. According to the PRISMS record, the applicant was not enrolled in a registered course.  The applicant did not dispute these entries. The Tribunal finds that there has been a breach of condition 8202(2) of the applicants Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

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

   Consideration of the discretion to cancel the visa

1. 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’

1. According to the applicant’s evidence, since arriving in Australia in 2014 the applicant has returned to Pakistan, just once (between 19 November 2015 and 24 December 2015). There have been no other trips outside Australia to any other destination. The applicant explained that he had not returned to Pakistan (in over 3 years) as this was a “long trip” and “costly”. He keeps contact twice weekly with family members in Lahore (usually his mother).

2. According to the applicant’s evidence, the applicant was born in 1994 and is aged 26. He arrived in Australia on 26 June 2014, aged 19 years. He had previously travelled to the UAE as a child (aged 12).  The applicant’s father (aged 59) is retired and in good health. His mother (aged 50) is also in good health. The applicant has two sisters (unmarried), (aged 23 and 20 respectively). He did not give any account of ill-health impacting any members of his family. He affirmed they were all in good health. The review applicant finished high school and trained as a web site developer in Pakistan.

3. According to the applicant’s evidence, the applicant’s father (before his retirement) operated a motor auto repair shop in UAE for 30 years. His father owns the family (2 stories home) in Lahore, Pakistan. In addition, his father owns 3 other properties. One property (a residential tenancy in 50-50% ownership with a brother of the father) is occupied by two families. His father also owns (in his sole capacity) two commercial properties (shops). One commercial property is rented as a barber shop and the other as a restaurant.  His father earns income by buying and selling properties, from time to time.

1. According to the applicant’s evidence, the applicant has had no serious health issues whilst in Australia although he occasionally has needed medication for a respiratory condition which reoccurs from time to time. He did not indicate it was a major issue in his life or a consideration affecting the non-progress of his studies.  For a time during 2015, he suffered from depression and loneliness. The Tribunal accepts his evidence, albeit he produced no medical evidence to support these claims. These conditions impacted on him.

2. According to the applicant’s evidence, the applicant is single and has no children from any relationship. He has no relatives in Australia and no partner here or elsewhere. In Sydney, he resides at Westmead with a friend and a cousin (newly arrived from Pakistan).

1. According to the applicant’s evidence, the applicant does not own any assets in Australia and subsists on his part time wages. He works 20 hours a week by driving taxis or working elsewhere from time to time. When he arrived in Australia the applicant had a poor knowledge of English. But working in Australia has now given him a better command and fluency in English (which he demonstrated with little difficulty by participating in the Tribunal’s hearing without an interpreter).

1. According to the applicant’s evidence, he initially, on arrival in Australia, attended TAFE courses for English but was unsuccessful in completing the courses. Passing these TAFE Course subjects was pre-requisite for entry into his Degree Course at the University of Western Sydney.

1. He was eventually recorded in the PRISMS record as “not having commenced” by the University of Western Sydney. The applicant abandoned his approved degree course and made unsuccessful attempts to transfer to a web site development course at TAFE. It was at this time that he received (in February 2017) a notice of intention to consider cancellation (NOICC) from the Department. The applicant had not advised the University directly or approached it (himself) at any time concerning his difficulties or change of plans.

1. The applicant did not respond to the NOICC within the time notified by the Department and he was not allowed an extension of time to respond. Prior to receiving the NOICC he did not attempt at any time to request from the Department an alteration of his visa status.

1. Prior to receiving the NOICC and since cancellation of his Higher Education Sector student visa the applicant has not attempted to engage any migration agent who could have advised him on the potential consequences of switching to courses provided by TAFE (as against pursuing a higher degree at University) and of changing courses without approval (of the Department) and the possible impact on his visa status and breach of its conditions.

1. According to the applicant’s evidence, after his visa was cancelled and after he did not get a response from TAFE about his application to enter a web site development course, he abandoned any effort to complete a preferred course at TAFE save for approaching Elite Educational Pty Ltd trading as Elite Education Institute (ELITE) as described below and waited for the Tribunal hearing.

1. At the hearing before the Tribunal, the applicant was provided with a copy of his contemporary PRISMS record dated 1 May 2019 which showed that upon coming to Australia he completed a course in Certificate III in Programming at TAFE, Granville NSW. He also then enrolled in Certificate IV in Programming at TAFE, Granville NSW.  He was unwell during the period when he was undertaking the Diploma courses and asked that they be cancelled. (An updated PRISMS record dated 18 December 2019 showed the same and no additional entries from that dated 1 May 2019).

1. According to the applicant’s evidence, he requested an educational consultant at IDP Education Pty Ltd (IDP) to change courses and provided that person documentation which that person indicated would be sent to TAFE to assist him to enrol in a web site development course.

1. According to the applicant’s evidence, he was advised by IDP that it had a special connection with ELITE and it directed him approach ELITE to secure enrolment in a course. When he consulted ELITE, he was offered a course in Advanced Diploma of Business. He paid an upfront fee and obtained an Offer of Enrolment.  However, ELITE then cancelled the Offer of Enrolment and returned his payment as he had not obtained a “release letter” from the University of Western Sydney and his Student Visa had been cancelled.

1. The applicant was asked why he had changed from attempting to qualify in subjects providing a career in IT and had switched to an Advanced Diploma of Business. The applicant explained he was not interested in the Advanced Diploma of Business but it was the course that ELITE had available for him. He declared firmly “I am an IT guy” and indicated he had no interest in the business course. Since that attempt at enrolment, the applicant has not pursued any other studies at any level and has been awaiting the outcome of his application for review to the Tribunal in respect of his visa cancellation.

1. According to the applicant’s evidence, he relied exclusively on recommendations from educational consultants who are not qualified migration agents. His efforts were misdirected. The applicant did not attempt to obtain useful information from those who could have professionally assisted him (migration agents and the Department) which would have revealed an appropriate course of action. He appears not to have taken any concrete steps (apart from paying upfront course fees which were then refunded) or which involved any expense. (For example by seeking the assistance from qualified migration agents or migration lawyers). The applicant did not provide any justification why matters were outside of his control.

1. According to the applicant’s evidence, he comes from a well-resourced family in Lahore, Pakistan with relatively young and healthy parents. During the hearing the applicant did not express any long term career goal to apply for any proposed qualification from the different from the web site development course he had already undertaken in Pakistan.

1. The applicant was asked what hardship his return to Pakistan might involve in the event that the decision of the delegate to cancel the higher student visa was affirmed. He explained that for him it would be a “nightmare” as he would have to go back with nothing to show for his time in Australia. Further, he said there would be disappointment in his family as they had provided financial support.

2. In summary, the applicant gave the following explanations for his non completion of an approved course or enrolment with another approved education provider.

   (a)  There was a problem with his communication and contact with the International Coordinator at TAFE. This contact had been firstly broken due to a re-structure at TAFE but re-established by the applicant but then the contact was not effective in securing his enrolment at TAFE (which was not in any event  for an approved course with an approved provider and would not have been compliant with the conditions of his visa);

   (b)  The educational consultant he approached at IDP Education Pty Ltd was not effective in getting his enrolment at TAFE (which was in any event not for a course compliant with the condition of his visa);

   (c)   The University of Western Sydney did not respond to his request (via IDP) for release. (But the University did advise the Department he had discontinued his studies.)

   The purpose of the applicants travel to and stay in Australia

1. Student Visas (570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The student visa program exists to allow for non-citizens and non-permanent residents to study in Australia.

1. On 16 April 2014 the applicant lodged an application for a TU-573 Higher Education Sector visa that was eligible under the streamlined student visa processing arrangements.

1. During the application process for his student visa, the applicant stated that his intended purpose of travel to and stay in Australia was to study study Bachelor of Information and Communications Technology (CoE code 651C0D64) at the University of Western Sydney. The applicant was enrolled in the following courses to study as prerequisites, and for the purpose of, the principal course of study:

   a)    Certificate IV in Programming;

   b)    Diploma of Software Developing

1. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant did not respond within time to the NOICC to provide any information regarding why he wished to remain in Australia. [Although he did exceed the time to provide a response and his request was declined]. However, before the Tribunal he was given the opportunity to present his response with documents and emails as to his efforts to attain re-enrolment. Besides the documents produced prior to and at the hearing the applicant also forwarded to the Tribunal (by email dated 2 May 2019 - after the hearing) a number of documents recording his efforts to re-enrol in other courses. The Tribunal has considered all these documents and they substantiate the efforts he made to obtain enrolment but all for courses which would not have been compliant with the conditions of his Higher Education Sector student visa.

2. The Tribunal gives little weight to this consideration in the applicants favour because:

   a)The applicant was granted the TU-573 Higher Education Sector visa on 27 May 2014.

   b)The purpose for which the visa was granted ended since at least 15 April 2016, which was the date that the applicant’s enrolment in the Higher Education Sector Course, Bachelor of Information and Communications Technology was cancelled.

   c)The applicant was granted the visa to study in Australia and it was expected that he would do so. However, after he ceased his studies in the Diploma of Software Development on 30 December 2015, he had not enrolled in another registered course to recommence his studies. The Tribunal considers that he has not been fulfilling the purpose of his stay in Australia.

1. In the Tribunal’s view, the applicant may not wish to go back “empty handed” to Pakistan which he may consider an unfortunate outcome but he has not exercised the requisite effective effort to address his position at the time it would have been material to do so. As to his final objective was to re-engage with TAFE to procure a web site development course. This was a course similar to that which he had already successfully completed in Pakistan. It is difficult to see how completing a further course in Australia on the same subject would have improved on his education already achieved in Pakistan. He was specifically questioned on this and he gave no substantive response.

1. The Tribunal is of the view that his current purpose (as distinct from the time he came to Australia) is to remain in Australia not to undertake study but for some other unidentified purpose and to use the student visa program for the ulterior purpose of staying as long as he can in this country. The Tribunal gives some weight to this consideration in favour of the decision to cancel the visa.

The review applicant’s past and present behaviour towards the department

1. There is no information before the Tribunal to indicate any specific matters of relevance regarding the visa holder’s behaviour towards the Department. The Tribunal gives some weight to this consideration in the applicant’s favour.

   Whether there are persons in Australia whose visa would, or may, be cancelled under s140.00

1. According to the departmental records, no other person currently holds a visa or has held a visa reliant on the applicant holding a student visa. If the decision to cancel the visa is affirmed this will not therefore result in the automatic consequential cancellation by operation of law under section 140 of the Act or the visa of any other person. The Tribunal therefore gives no weight to this consideration in the applicant’s favour.

   Legal consequences of affirming the decision to cancel the visa

1. If the decision to cancel the applicants TU-573 Higher Education Sector visa is affirmed:

   (a)The applicant will be an unlawful non-citizen and liable to detention under section 189 and removal under 198 of the Migration Act 1958.

   (b)Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

   (c)The applicant will incur a penalty in that he will be subject to a three (3) year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirements 4013 to be met.

1. The Tribunal gives little weight to this consideration in the applicants favour because:

   a)    These are the intended consequences of the legislation when a visa is cancelled under these grounds. It reflects the seriousness of this cancellation ground.

   b)    Affirmation of the decision of the delegate to cancel the applicants TU-573 Higher Education Sector visa will not result in the applicant being immediately deported from Australia but the applicant will continue to reside here under his Bridging Visa E to allow him reasonable time to depart from Australia.

   c)    There is no evidence that the cancellation of the applicants TU-573 Higher Education Sector visa would lead him to be held in detention or that indefinite detention is a possible consequence of the affirmation of the decision by the Delegate to cancel the visa.

   d)    The applicant is a citizen of Pakistan with a travel document enabling him to return there if he has to depart Australia.

   e)    Whilst his failure to depart Australia may ultimately result in detention or removal action, it is not necessarily a consequence of the affirmation of the cancellation decision.

1. There is no evidence that the cancellation would impact on any victims of family violence. The Tribunal therefore gives no weight to this consideration in the applicant’s favour.

   Whether Australia has international obligations that would or may be breached as a result of cancelling the review applicant’s visa

1. The circumstances of this case are not such that they would engage Australia’s international obligation. The Tribunal therefore gives little weight to this consideration in the applicant’s favour.

   If there are children in Australia whose interests could be affected by the cancellation, or who themselves be affected by consequential cancellations, delegates are obliged to treat as a primary consideration the best interests of the children.

1. According to the applicant’s evidence and the Departmental record the applicant does not have any children in Australia or elsewhere whose interests could be affected if the decision to cancel the visa is affirmed, either because their visas would be consequentially cancelled as a result of cancelling the applicant’s student visa or otherwise effected. The Tribunal therefore gives no weight to this consideration in the applicant’s favour as it does not apply to his case.

   Whether cancellation would lead to removal in breach of Australia’s non refoulement obligations- that is removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

1. The applicant did not respond to the NOICC issued by the Department to provide any information relevant to this consideration in the applicants favour and when he sought permission to provide information out of time this was not agreed to by the Department. However, the applicant was permitted to provide additional information to the Tribunal both before the hearing and at the hearing.

1. The applicant has not applied for protection nor made any claims of being in need of protection and there is no reason before the Tribunal to suggest that his removal, if necessary, would lead to a breach of Australia’s non-refoulement obligations. The Tribunal therefore gives no weight to this consideration.

   The following other relevant factors were assessed

1. Having considered the evidence before it as outlined above, the Tribunal it is satisfied that all relevant additional factors had been considered and the Tribunal is satisfied that the reasons for not cancelling the visa do not outweigh the grounds for cancelling the visa.

1. Paragraph 116(1)(b) of the Act provides that, subject to subsections 116(2) and (3) of the Act, the Minister may cancel the visa if he or she is satisfied that the applicant has not complied with a condition of the visa.

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

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector Visa (subclass 573).

Brian Camilleri

Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.