Chandio (Migration)

[2019] AATA 6300

Chandio (Migration) [2019] AATA 6300 (7 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Adeel Mukhtar Chandio
Mrs Asma Hassan Khoso

CASE NUMBER:  1809503

HOME AFFAIRS REFERENCE(S):          BCC2018/146282

MEMBER:D Shirrefs

DATE:7 October 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 07 October 2019 at 5:13pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – gap in enrolment – no deferment of studies sought – family medical issues – 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 29 March 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act), which had been granted on 3 December 2016.

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course, in breach of condition 8202 of his visa, and therefore that the applicant had not complied with the condition of his visa. The delicate considered that the factors against cancellation did not outweigh those in favour and cancelled the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. The applicant, Mr Chandio, appeared before the Tribunal on 11 June 2019 via telephone from Karachi in Pakistan give evidence and present arguments.  The second visa applicant, Mrs Khoso, did not appear before the Tribunal on 11 June 2019.

6. 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

7. 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?

8. 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(1)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. In a document titled “Issues”, provided under cover of an email on 11 June 2019 from the applicant’s registered migration agent, the applicant’s agent stated that “it appears our client have (sic) not been enrolled in a recent course of study since 10 April 2017 and therefore do not meet the requirements of subclause 8202(2)(a). Based on this information, there appears to be a ground for cancellation of his version under s116(1)(b) as it appears, he has not complied with condition 8202”.

11. In his evidence during the hearing, the applicant said that he was happy for the Tribunal to rely on the documents provided by his agent when deciding his application.  When asked when he was last enrolled in a course, he said that he “had re-enrolled in a Bachelor of Business to commence in March 2018 at Stott’s College”, after having not been enrolled since 10 April 2017.

12. He said that he had left Australia on 2 July 2018 and been living in Karachi, Pakistan, since that time as there was nothing for him to do in Australia.

13. 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

14. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. Under cover of an email dated 11 June 2019 from the applicant’s registered migration agent, the applicant’s agent provided the following documents:

    a.A pregnancy report for the applicant’s wife;

    b.A copy of a submission to the Minister for Home Affairs (undated) in response to the Notice of Intention to Consider Cancellation (NOICC) issued 5 March 2018;

    c.A psychologists report for the applicant, dated 12 March 2018;

    d.An offer and Certificate of Enrolment (COE) from Stott’s Colleges, dated 14 March 2018;

    e.Numerous medical reports and test results for the applicant’s wife; and

    f.A copy of the business details for a psychologist, Mr Randolph Monteiro.

16. I have considered all the documents provided by the applicant in addition to his evidence during the hearing.

    the purpose of the visa holders travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. The applicant’s initial visa was granted for the purposes of studying.  He gave evidence at the hearing that he had finished the Advanced Diploma of Management.  There is no documentary proof of this before the Tribunal, however, I accept the evidence of the applicant at the hearing.

18. By his documentary and oral evidence, his enrolment in a registered course of study was cancelled on 10 April 2017, yet he continued to reside in Australia on the student visa for more than 11 months until he re-enrolled on 14 March 2018 in the Bachelor of Business at Stott’s College.  I consider this length of time to be, on any measure, a substantial period of non-enrolment. 

19. I note the oral evidence of the applicant that he had finished the Advanced Diploma of Management.  I also note his evidence that after March 2018 until he returned to Karachi on 2 July 2018 he was waiting for a decision in relation to his review application and that he left Australia only because he was in a bridging visa class A.  However, none of this evidence goes to the reason why he remained in Australia, whilst not enrolled in a registered course of studies for a substantial period of time, being the gap between 10 April 2017 and 14 March 2018.  Accordingly, I give this consideration very little weight in his favour.

20. The applicant gave evidence at the Hearing that a reason for his return to Karachi was that he had nothing to do in Australia.  He described his reason for wanting to travel back to Australia as being wanting to get back to the studies.  Although I accept his evidence is that he would prefer to return to Australia to continue studying I do not consider he has demonstrated a compelling need to return.  I give this factor little weight in favour of the applicant.

21. As he is not presently in Australia I have not considered whether he has demonstrated a compelling need to remain in Australia. 

    the extent of compliance with the visa conditions

22. The evidence before the Tribunal does not establish that the applicant has breached any conditions other than condition 8202.  I give this some weight in the applicant’s favour.

23. As such, the breach of condition 8202 is the only factor relevant to this consideration. The applicant’s evidence discloses that he was issued with the on 5 March 2018.  It also discloses that the applicant secured an enrolment after being issued the NOICC, on 14 March 2008.

24. I place significant weight on the fact that the applicant only secured an enrolment after being issued with the NOICC.  Obtaining this further enrolment after being issued with the NOICC does not negate the fact that the applicant has breached condition 8202(2)(a) of his student visa.  Indeed, I consider that it raises credibility issues as to his motive.  The applicant’s previous conduct whilst on his student visa cannot be excused simply by the fact of him seeking further enrolment.  Accordingly, I give this consideration very little weight in his favour.

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

25. In his response to the NOICC the applicant’s representative suggests that he would face a potential loss to his career were his visa to be cancelled.  I have considered this information, however, it is reasonable to expect that the applicant would be considered for cancellation of his visa given that he did not re-enrol for a period of 11 months.  In short compass, the applicant had plenty of time and opportunity to rectify his enrolment status and failed to do so until he received the NOICC from the Department.  His circumstances have been visited on himself and I give this consideration little weight in his favour.

26. In his response to the NOICC applicant submitted a psychologists report dated 12 March 2018.  This is considered further below.  Against any psychological hardship that could be argued to be caused by the cancellation of the applicant’s Visa on the basis of the psychologists report, I note that the evidence of the applicant at the hearing was positive in regard to his ability to study in future.  He used expressions such as “everything is on track” and “my health is better” and “I’m okay to go now” when discussing his psychological health.

27. The evidence he gave at the hearing was 15 months after the date of the psychologist’s report the applicant relied on in response to the NOICC.  In my view it is more contemporaneous evidence as to his psychological health and speaks to his future ability to study and the psychological impact of doing so.  Although the evidence submitted in the psychologists report is accepted as being relevant to his then state of health, I am not convinced it reflects the current state of his psychological health.  I accept, and prefer his evidence that he gave at the hearing in relation to his current state of health.  For these reasons, I give this consideration (the asserted hardship arising from the cancellation by reference to the psychologist’s report) little weight.

28. In his evidence at the hearing, the applicant spoke about the fact that his family were all relatively highly educated.  There is supporting evidence for this in his response to the NOICC.  At the hearing he spoke of feeling inferior to his relatives and that he was a loser. I have real reservations about this claim.  While it might be true that a failure to achieve the same educational standards as his family could cause him emotional hardship, I cannot reconcile that with his conduct, including the fact that he let his enrolment lapse in March 2017 and remained in Australia for 11 months after that, only engaging with reenrolment when the reality of the possible cancellation became apparent.  In my opinion, if he genuinely faced material emotional hardship if he failed failure to achieve the same educational standards as his family, he would have done everything he could have to make sure he achieved a similar level of education, including exhausting his options to defer or take other steps to manage his circumstances surrounding his ongoing enrolment.

29. I have considered the evidence in relation to the alleged degree of hardship that may be caused separately and in combination.  On balance, and weighing the evidence carefully, I consider that the alleged agreed hardship should be given little weight in favour of the applicant.

    the circumstances in which the ground for cancellation arose - whether there were any extenuating circumstances beyond the visa holders control that led to the grounds existing

30. As part of the documents referred to in paragraph 15 above, the applicant provided a scanned copy of a pregnancy report for his partner dated 10 April 2015, the psychologist’s report dated 12 March 2018 and scanned copies of various medical records of his partner in relation to her reproductive health and referencing a number of miscarriages.

31. In his response to the NOICC, the impact of the accumulation of circumstances up to and including his wife’s third miscarriage is described by reference to the psychologists report. The applicant is reported as informing his psychologist that, as a consequence of his wife’s poor reproductive health, “it became impossible for him to focus on his studies because his mind wandered about his future relationship and the possibility of not having children.  He expressed loss of interest in almost all activities he was usually interested in.”  The psychologists report assesses the applicant as “experience Adjustment Disorder with Mixed Anxiety and Depression and sleep Deprivation which appears to derive directly from the circumstances (page 7).

32. I have considered the claim raised by the applicant and all of the supporting evidence provided by him.  I also note that his evidence of the hearing was that both his wife’s and his own health was better.

33. While I acknowledge that the matters raised by the applicant in relation to the circumstances in which the ground for cancellation arose may have adversely impacted his ability to focus on his studies and may well have been traumatic for him, I note that he could be expected to be reasonably familiar with the administration of his course.  He gave evidence to his psychologist that he had successfully completed his Higher Certificate in Business from Griffith College, Dublin, Ireland, in 2012.  His oral evidence was also that he had completed and Advanced Diploma of Management.  I consider it reasonable to expect that the applicant would have considered applying for a deferral with his education provider, or made efforts to raise the matters with his education provider for its consideration.  There is no evidence before the Tribunal in relation to either of these possibilities and the applicant did not suggest in his evidence at the hearing that these issues had been pursued by him. For example, there is no evidence before the Tribunal that the applicant did so much as approach his education provider to have these matters the considered.

34. Having considered all the matters, the applicant put forward in relation to the circumstances in which the ground for cancellation arose, and having carefully considered them, I give them some weight against exercising the discretion to cancel the visa.

    past and present behaviour of the visa holder towards the Department

35. The only evidence in relation to this before the Tribunal is the submission the applicant made to the Minister for Home Affairs, which was provided initially in response to the NOICC, provided under cover of an email dated 11 June 2019 to the Tribunal. 

36. The applicant has engaged with the department in relation to its considerations whether or not to cancel his visa.  He has engaged with the tribunal.  I regard this fact as being neutral in terms of its weight in considering whether to exercise the discretion to cancel the applicant’s visa.

    whether there would be consequential cancellations under section 140

37. The applicant has a dependent wife whose visa would be cancelled under section 140 of the Act if the applicant’s Visa is cancelled.  In those circumstances, the cancellation of the applicant’s Visa would not result in the separation of the applicant from his wife.

38. I note further that the applicant gave evidence at the hearing that, in the event that his Visa isn’t cancelled, he “hasn’t decided if his wife will come with him”.  To the extent that the cancellation of his wife’s Visa under section 140 may be a consequence of a decision to cancel applicants Visa, I am unable to conclude on the evidence before me that those consequences would necessarily be adverse.  Accordingly, I give this consideration little weight.

    whether there are mandatory legal consequences of a cancellation: whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Ministers intervention

39. At the date of the hearing, the applicant was residing in Karachi and he gave evidence that he would only be returning to Australia in the event that his student visa was not cancelled.

40. While affirming the decision to cancel the applicants visa would mean that he would only have access to a limited range of visas, this is the intention of the visa cancellation regime.  While he gave evidence that a decision in his favour would be good for him, his presence in Karachi is evidence that he is able to return to his home country and not suffer any adverse consequences of doing so.

41. I regard this factor as being neutral in terms of its weight in considering whether to exercise discretion to cancel the visa.

    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

42. I have carefully considered all the evidence before the Tribunal and I have found there is nothing before the Tribunal that suggests this case raises any questions of Australia’s international obligations.

    Any other relevant matters

43. In response to the NOICC the applicant’s representative made the submission and the applicant’s circumstances in which the ground for cancellation arose were exceptional.  While I have considered this carefully, I note that there is no evidence before the Tribunal of the applicant taking steps other than visiting a psychologist to address his circumstances.  For example, there is no evidence for the Tribunal that the applicant approached his then course provider in relation to his circumstances, or that he enquired into whether he might change his study program in response to circumstances.  On balance, although I accept that they may be reasonably regarded as unfortunate, I do not consider that the applicant’s circumstances in which the ground for cancellation arose could be regarded as exceptional.

44. Having considered all of the evidence, both documentary and oral at the hearing, I’m not aware of any other factors relevant to this decision. 

45. Considering the circumstances of this case as a whole, the Tribunal concludes that the visa should be cancelled.

46. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    D Shirrefs
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202 (1)    The holder must be enrolled in a full-time course of study or training if the holder is:

    (a)     a Defence Student; or

    (b)    a Foreign Affairs student; or

    (c)     a secondary exchange student.

    (2)A holder not covered by subclause (1):

    (a)must be enrolled in a full-time registered course; and

    (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, is not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
    (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the National code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirements set out in paragraph (2)(b) if the holder:

    (a)is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)changes their enrolment to a course at the Australian Qualifications Framework level 9.