Farooq (Migration)

[2018] AATA 4683

Farooq (Migration) [2018] AATA 4683 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibtesam Omer Farooq

CASE NUMBER:  1704601

HOME AFFAIRS REFERENCE(S):           BCC2017/321666

MEMBER:Michelle East

DATE:10 October 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 October 2018 at 1:30pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – reason for breach – sexual orientation issues – estranged from family – no financial support – working rights – informing family of sexuality – decline in academic performance – inconsistent information – decision under review affirmed


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

CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 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 there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 2 July 2016.  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 8 October 2018 to give evidence and present arguments.  His partner, Mr Asphar also attended and gave evidence.

4. 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

5. 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.

   Section 376 Certificate

6. The Tribunal received a Certificate issued by a delegate of the Minister for Home Affairs dated 13 August 2018 pursuant to section 376 of the Act.

7. The Tribunal was of the preliminary view that the Certificate was valid and accordingly, the applicant was advised of its existence and invited to make submissions on its validity.  The information covered by the Certificate was given to the Department in confidence.  The information relates to an anonymous dob-in from an external third party.  As the information subject to the Certificate potentially could be the reason or part of the reason for affirming the decision under review, the Tribunal advised the applicant of the gist of the information.  Namely, the applicant applied for work and requested to be paid in cash.  The implication being the applicant was not complying with other visa conditions by working when he did not have working rights.  The applicant gave evidence that he did not apply to work without obtaining working rights on his Bridging Visa E.  His evidence was that he had been working on his student visa and then started working again once he received working rights, as an Uber Eats driver.

   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(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).

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

10. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 2 July 2016.

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 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’.

13. On 16 February 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of his visa.

14. On 22 February 2017 the applicant responded requesting more time within which to address the NOICC.  He was granted a further five days however did not provide a further response within that time frame and the delegate made its decision based on the available information at that time. 

15. The Tribunal is in receipt of a document entitled ‘Response to Notice of Intention to Cancellation of Visa’.  In that document he details his reasons for his breach of condition 8202, which he concedes he has breached.  He refers to his good character and educational resources.  He says he became depressed due to his sexual orientation.  He said it was unacceptable and an offence in Pakistan to be homosexual and his parents found out and stopped supporting him financially.  He said he eventually managed to persuade his parents to support him and would like to continue with his studies.

16. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

17. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant concedes that he had not been enrolled in a registered course of study since 2 July 2016.

18. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

19. The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

20. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

21. The applicant was granted the visa to undertake specified studies in Australia and has not done so since 2 July 2016.  As such he has not complied with the primary condition of the visa granted to him.

22. Whilst the Tribunal notes the applicant was suffering from some personal issues, it also notes he realised his sexual orientation in 2013.  The Tribunal questioned why it then became an issue for him in 2016 causing him to cease his studies.  The applicant’s evidence was that he was unable to be in a homosexual relationship in Pakistan but once he came to Australia he had more freedom and became involved in some relationships.  He said in early 2016 he became consumed with how he would disclose it to his family.  He said he became increasingly depressed and unable to concentrate on his studies or his work.  He gave evidence that he told his family in mid-2016 and he then became estranged from them.  He said his father was especially religious and not willing to accept the situation.  He said they stopped supporting him financially and he was unable to continue with his studies.  He said he now has some contact with his mother and siblings but his father has not yet spoken to him.  He said his parents were also trying to arrange a marriage for him in Pakistan which he said was impossible for him to consider.

23. This oral evidence was inconsistent with what he stated in his Response referred to in paragraph 15.  In that document in describing his current situation he said ‘Though times were tough, however I am somehow successful to convince my parents to support me financially, so that I can complete my course..’

24. When initially giving his evidence the applicant stated he told his parents in either late 2016 or early 2017.  When the Tribunal asked later in the hearing why he had stopped studying mid-2016, sometime prior to telling his parents, he said he had the dates wrong and it was actually mid 2016 that he told them.  The Tribunal observed the applicant and his partner interact in the hearing and confer on when he told his parents, initially agreeing on late 2016/early 2017.  When this inconsistency was highlighted to the parties the partner stated he didn’t actually know and was agreeing with the applicant.

25. The Tribunal is concerned that the applicant changed his evidence mid-way through the hearing when he realised the difference in the dates between when he finished studying and when he initially said he had told his parents.

26. The Tribunal has some sympathy for the applicant and appreciates the difficulty of his parents estranging themselves for a time when they discovered his situation.

27. Despite this however the Tribunal considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he has not done so for a significant period of time.

28. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

29. The applicant has said it would be difficult for him to return to Pakistan due to him being a homosexual.  He said he would be jobless, have no educational qualification, no career, be a social minority and also never feel safe due to homosexuality being a crime.  The applicant spoke of the shame this could cause his family and his likely estrangement from their community.  He also said his parents were arranging a marriage for him and he was unable to consider being married.

30. The Tribunal notes the evidence provided by the applicant himself regarding the possible hardship which may be suffered by him on a return to Pakistan and finds this provides some weight in the applicant’s favour.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

31. The applicant has provided further information in his response to the Tribunal surrounding the circumstances leading to his cessation of studies.  He also gave oral evidence at the hearing.

32. The applicant gave evidence that he was having a difficult time prior to the cessation of his studies and that these factors were beyond his control.  However, the applicant’s evidence was confusing and sometimes inconsistent both within the hearing and with documentary evidence he had provided previously.

33. The applicant in the hearing said he was ‘consumed’ with telling his parents about his sexuality and that this affected his ability to focus and study.  Initially he said that he told them late 2016 or early 2017.  When the Tribunal asked him why he then ceased studying six months earlier he said he was having troubles with his studies and he was having financial issues and not working that much.  He said his father stopped supporting him.  When questioned why his father stopped supporting him at that time, he said he had told his parents about his sexuality.  When the clear inconsistency with the earlier evidence was raised, the applicant said he had ‘figured out his dates now’ and he had told them around March/ April 2016.

34. The Tribunal does not accept the applicant’s explanation for the inconsistencies in his evidence.  He gave clear evidence at the beginning of the hearing about when he told his parents of his sexuality.  When it was noted he had stopped studying at least 6 months prior to when he said he told them, he then changed the date to that time.  In the applicant’s document entitled ‘Response to Notice of Intention to Cancellation of Visa” provided to the Tribunal he discusses the reasons for his depression and said in relation to his homosexuality, ‘I kept it a secret from my family and came here for a bit of freedom and to live my life as I like.  But I was not lucky enough and my parents somehow came to know about that and stopped talking to me, they also stopped my pocket money and stopped financially supporting me’.

35. The applicant gave oral evidence that the reason for his decline in academic performance in 2016 was because he was consumed with how he would tell his parents that he was homosexual.  The document provided to the Tribunal prior to the hearing gives the impression the applicant’s parents found out inadvertently without his knowledge.

36. The Tribunal is concerned at the inconsistencies in the applicant’s evidence provided both prior to and within the hearing.  As such, the Tribunal remains unconvinced as to why the applicant ceased studying and is not satisfied that those circumstances were beyond his control.

    Past and present conduct of the visa holder towards the Department

37. As noted above, the applicant was the subject of an anonymous dob-in alleging he may have tried to obtain work, being paid cash in hand, when he had no working rights on his bridging visa E.  The Tribunal is reticent to accept information received via an anonymous dob-in without any form of corroboration.  The Tribunal questioned the applicant regarding a possible breach of his visa conditions and the applicant gave clear evidence that he had not worked in breach of his visa conditions.

38. The Tribunal notes the inherent unreliability of an anonymous dob-in.  Even if the information subject to the Certificate were to be accepted, the allegation the applicant requested to be paid in cash does not necessarily lead to the conclusion that he was working illegally.  Due to the unreliability of the information the subject of the Certificate, the Tribunal has placed no weight on that information in forming its decision.

39. The Tribunal, whilst accepting the applicant’s evidence in relation to working, notes it has not independently verified whether the applicant had obtained working rights on his bridging visa.  As such it hasn’t formed a view on whether the applicant has breached other conditions of his visas.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

40. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

41. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

42. The applicant raised the issue of his homosexuality and confirmed he was fearful of returning to Pakistan.

43. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

44. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  If will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse proven about the applicant’s past and present conduct towards the Department.

45. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

46. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education sector visa.

    Michelle East
    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.