Ghufran (Migration)

[2019] AATA 3923

Ghufran (Migration) [2019] AATA 3923 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ghufran

CASE NUMBER:  1702974

HOME AFFAIRS REFERENCE(S):           BCC2016/4334981

MEMBER:Wendy Banfield

DATE:11 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2019 at 4:18pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – applicant changed to Vocational courses – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
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 20 February 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 had not continued enrolment in an approved course of study as required by the conditions attached to the Student Visa. 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 31 years old. He came to Australia in 2014 to study a Bachelor of Business at Kent Institute from 10 November 2014 to 14 July 2017. The applicant discontinued his enrolment in the degree course and instead enrolled in Certificate III and IV courses.

4. The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Evidence of the visa applicant

6. The applicant did not submit any written evidence to the Tribunal prior to the hearing. He had provided some evidence to the Department which has been taken into account in this decision.

7. At the Tribunal hearing the applicant advised he first came to Australia on 25 November 2014 and planned to study Accounting. He mentioned that he was allowed to work 20 hours a week then said the problem he has had with his studies is he cannot understand things unless he does it practically. The applicant advised that after six or seven months in Australia he got sick. Prior to coming to Australia the applicant said he had completed one year of a Master’s degree. He said he had completed a Bachelor degree in Accounting and Finance before that.

8. The applicant said he came to Australia to study because his father wanted him to become an Accountant. He advised he had worked in that field in his home country. The applicant was asked about the course he chose to study in Australia. He did not respond to the question but talked about his preference for having his own business rather than being employed. He said his father directed him what to study and it was not what he wanted himself. According to the applicant while in Australia he began working 20 hours per week at Dominos. He then said he loved painting [and decorating] and wanted to do that but his father said he would not provide him with support in that case.

9. The applicant was asked again about his course of study and he said he enrolled in a Bachelor of Accounting. Even though he already had a Bachelor degree, he said he was advised by an agent to take that course. He said he began a business in painting and decorating but since a trade is considered to be a low level of employment his father did not support him financially anymore. He asked his provider Kent College if he could pay by instalments but was not allowed to. Instead he enrolled with Group Colleges Australia (GCA) but once he started the course he was advised he was bored because of the quality of the teachers. According to the applicant he had worked part-time in the painting trade without telling his parents in Pakistan.

10. The applicant said he began to learn the proper methods of painting and decorating in Australia so he enrolled in TAFE Ultimo and no longer attended his Accounting course at GCA as required. He said he discontinued because he was not permitted to submit assignments as the fees were not paid which according to the applicant; was due to his father withdrawing support. The applicant said he worked 20 hours a week and was earning a good hourly wage. He said he finished a course at TAFE and outlined how he took admission at three different colleges and completed various pieces of assessment. The applicant was not able to say where he had studied but advised they were short courses. The applicant conceded he made a mistake by changing from Accounting to Painting and Decorating but claimed it was because he wanted his own business.

11. The Tribunal asked why the applicant did not contact the Department to change his study program. He said at the time he became sick and was suffering from mental health issues and as a result he did not seek advice or talk to anyone. The Tribunal reminded the applicant the Department cancelled his visa because he had not maintained enrolment in an approved course and had not studied higher education. According to the applicant, he thought that when he enrolled in TAFE, the Department would automatically be made aware where he was enrolled because he had provided his universal student identification. He said his teacher at TAFE told him he was able to take the course and that it was equal to higher education.

12. The applicant was asked whether he had a compelling need to remain in Australia. He said he did but went on to explain it was his migration agent who had written the response to the Department’s notice regarding possible cancellation of his visa and that it was not accurate or approved by him. The applicant said half of his problems occurred because of his former agent. The applicant said he wanted to complain about the agent because he had told that person his whole story but it had not been included in the response to the Department.

13. The applicant claimed he still wanted to study bookkeeping and it had to be in an overseas country such as Australia or New Zealand. He said people who have studied in another country have an advantage and are given preference in Pakistan. Regarding any hardship that may occur, the applicant said he would be affected psychologically and had already suffered mental health issues. He said when this occurred he was referred for further treatment but had opted to stay at home and pursue spiritual healing.

14. In conclusion, the applicant reiterated he wanted to study bookkeeping and then start his own business in collaboration with Dulux. The applicant claimed he had investigated enrolling in a degree program in Bathurst and that it would take 1 ½ to 2 years as he would be exempt from some subjects. He requested that he be allowed to complete a degree, after which he would return to Pakistan.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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?

16. 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).

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

18. The applicant confirmed he had not been enrolled in an approved course of study from 17 March 2016 to 23 January 2017 when the Department issued a Notice of Intention to Consider Cancellation. 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

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 Procedures Advice Manual (PAM3) ‘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. Considering the evidence before it, the Tribunal notes the applicant has engaged in different employment while in Australia which appears to have taken precedence over study at times. However, the Tribunal is prepared to accept that the applicant’s original purpose in travelling to and staying in Australia was to study.

21. The applicant was invited to make submissions regarding any compelling need to remain in Australia. Rather than provide a specific response to this consideration, the applicant proceeded to explain his former agent’s actions in providing a false statement to the Department which the applicant said he did not see or approve. The Tribunal assessed the claims put forward in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions refer to his former agent’s alleged improper activities on his behalf in providing a response to the Department’s notice of intention to consider cancelling his visa. They do not address his reasons for wanting to stay in Australia. The applicant’s evidence does not demonstrate 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

    The applicant failed to maintain enrolment in an approved course of study which 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)

22. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.

23. The applicant claimed he would suffer psychological hardship if his visa is cancelled because he had suffered mental health problems in the past. In providing this evidence at the hearing the applicant advised he did not take up recommended treatment from his doctors at the time but preferred to stay at home. The Tribunal acknowledges the cancellation of the visa may cause a degree of psychological hardship and would mean that the applicant would not be able to recommence or continue to study in Australia. The Tribunal has given some weight in favour of the applicant in this regard.

24. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

25. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student Visa but did not continue enrolment in an approved course of study for a period in excess of 10 months, from 7 March 2016 to 23 January 2017. The applicant had applied for, and was granted a Student Visa to study in the higher education sector in Australia but did not continue to study at the appropriate level or at all for periods of time. The applicant had submitted evidence to the Department to show he had enrolled in and completed a Certificate III in Painting and Decorating at TAFE in 2015 evidence also claimed at the time to have enrolled in further vocational training course.   

26. The applicant advised in evidence to the Department and at the Tribunal hearing that he discontinued his studies in Accounting because it had been his father’s choice not his and he found the courses difficult. The applicant decided to pursue a Certificate III course in Painting and Decorating because according to him, he had a background in that type of work from his home country of Pakistan. He advised he also began working in that trade in Australia and was earning a good income.  

27. The Tribunal has considered the circumstances in which the grounds for cancellation arose and is not satisfied they were beyond the applicant’s control.  The Tribunal does not accept the applicant’s claims that he was told a Certificate III course would meet the requirements of higher education or that he understood this to be the case. The applicant claimed to have a Bachelor degree from Pakistan prior to coming to Australia and he would have been well aware of the difference between tertiary studies and a low level vocational trade course. It appears the applicant was motivated to study Painting and Decorating as it suited his plans to work in that area and possibly start his own business. It was open to him to apply to change the conditions attached to his visa if that was his preferred career path but he did not do so. While the applicant declared it was his father who wanted him to study Accounting and Painting and Decorating was his own choice, this does not explain the applicant’s failure to take steps to ensure he complied with the conditions attached to his Student Visa.

28. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

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

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

    ·     whether there would be consequential cancellations under s.140

29. 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

30. 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 consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s 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

31. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

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

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

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved higher educational course of study which was the purpose for which the visa was granted. The applicant undertook low level vocational courses in breach of visa conditions and failed to maintain ongoing enrolment for an extended period. The Tribunal finds this weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

    Conclusion

33. 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 finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

35. 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.