HAIDER (Migration)

[2019] AATA 3449

HAIDER (Migration) [2019] AATA 3449 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZUHAIR HAIDER

CASE NUMBER:  1705202

HOME AFFAIRS REFERENCE(S):          BCC2017/15092

MEMBER:Gregory Sarginson

DATE:31 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2019 at 10:46am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – medical condition – purpose of visa not fulfilled – decision under review affirmed

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

CASES
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 14 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8202(2)(a) – enrolment. 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 22 March 2019 to give evidence and present arguments. At hearing, the applicant was advised that Member S Norman was also attending the hearing in order to observe and assist.

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.

   Did the applicant comply with Condition 8202?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 9 September 2015 (stay period: 21 July 2017). By Notice of Intention to Consider Cancellation (NOICC) dated 17 February 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated that it appeared that he had not been enrolled in a registered course of study since 20 April 2016. Further, that it therefore appeared that he had breached condition 8202(2)(a), and that his visa may be cancelled pursuant to s.116(1)(b) of the Act.

8. The applicant responded to the NOICC and provided reasons they believed the Student visa should not be cancelled (discussed below). However, they did not dispute there were grounds to cancel the visa. When discussed at the Tribunal hearing, the applicant did not dispute that there were grounds to consider cancelling his Student visa.

9. That being said, 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)(a).  

   Consideration of the discretion to cancel the visa

10. 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’.

11. Regarding the purpose of the applicant’s travel to and stay in Australia, amongst other things, the applicant said he intended to travel to and stay in Australia, for the purposes of study. In his responses to the NOICC, he advised that he had a medical problem (discussed below) and he could not study, but he tried to work to pay off his debts. However, the applicant had ceased to be enrolled in a registered course of study for almost ten months at the time the NOICC was issued. The applicant had also advised he had ‘managed to find a company to sponsor him and he wants to remain in Australia under the 457 sponsorship’. He also requested the Department (and now the Tribunal) to not cancel his visa and to give him more time to pursue his business visa application.

12. At hearing, the Tribunal put to the applicant that subject to his comments, the following would be the reason or part of the reason for affirming the decision under review. After then advising him he could seek further time to respond to this information (something that he did not request), the Tribunal advised him that information on PRISMS indicated that he had not completed any course of study in Australia, since successfully completing an Advanced Diploma of Business on 14 April 2015 (being almost four years prior to the Tribunal hearing). The Tribunal then explained (words to the effect) this may cause it to consider (or not accept) that his intention for remaining in Australia, was for the purpose of study.

13. The applicant had then said he had been granted three Student visas to travel to and remain in Australia (the first being granted in 2013). He also explained that he had been able to work consistently (approximately ten months per year) since arriving in Australia in 2013. He said that in or around 2015, he was being praised for his work by his then employer and he was encouraged to apply for a Subclass 457 Temporary Business visa. He subsequently said that he then focussed on obtaining the Subclass 457 visa, and was not focussed on his studies.  He now believes this ‘choice’ to have been a bad mistake. 

14. The applicant had also said that he now wants to continue his studies in Australia (he referred to wanting to obtain a Bachelor of Business). When then asked what enquires he had made to ascertain whether he could pursue this degree in Australia, he said none. However, he now wanted to study so that he would not be ashamed should he return to Pakistan.

15. The Tribunal notes the applicant’s difficulties in paying for his school and other fees in Australia (also referred to below), his attempts to obtain a Subclass 457 visa (from around 2015), and his failure to successfully complete any course in Australia since April 2015. After considering same, I am not satisfied his present intention is to remain in Australia, for the purposes of study.

16. Regarding the extent of compliance with visa conditions, as noted herein, the Tribunal has accepted the applicant failed to maintain enrolment in a registered course of study for almost ten months at the time the NOICC was issued. Based on this finding, and as referred to at hearing, the Tribunal also accepts the applicant had breached condition 8516 (see cl.573.231).

17. Regarding the degree of hardship the applicant or his family may suffer if his Student visa is cancelled, in his response to the Department, the only hardship the applicant claimed to fear appeared to relate to whether or not he would be prevented from lodging a Temporary Business visa application (discussed below).

18. When discussed at hearing, the applicant explained that his father passed away in 2007, and he had then worked to support his family in Pakistan. He said his mother, and two brothers continued to reside in the city of Lahore. He said his brothers were now successful in Pakistan; and he would feel shamed if he returned to Pakistan without obtaining further education in Australia (though he had successfully completed an Advanced Diploma in Business in Australia on 14 April 2015). He also feared he would not be able to obtain education in Pakistan that was as well regarded as that which is available in Australia, or that he would be able to obtain the better work opportunities that may be available in Pakistan, after obtaining a degree in Australia.

19. At hearing, the Tribunal noted the applicant was 32 years of age and that he was presumably sufficiently young to pursue a new career in Pakistan. Further, that the country information indicated that tertiary education was reasonably available in Pakistan (particularly in the cities, such as where he had previously resided[1]); and the applicant conceded the Pakistan economy was ‘advancing’, particularly after Imran Khan became Prime Minister (in July 2018[2]).  The Tribunal also noted (and now finds) that the country information it had seen supported the view that the Pakistan economy was relatively strong, and work may be available to the applicant on return[3] (and the Tribunal notes he claimed to have worked for the Pakistan, Ministry of Water and Power for five years prior to travelling to Australia).

    [1] DFAT COUNTRY INFORMATION REPORT, PAKISTAN, 20 February 2019. ‘Education’, from [2.29].

    [2] DFAT COUNTRY INFORMATION REPORT, PAKISTAN, 20 February 2019. ‘Recent History’, [2.5].

    [3] DFAT COUNTRY INFORMATION REPORT, PAKISTAN, 20 February 2019. ‘Economic Review’, from [2.13].

20. Be that as it may, the Tribunal proposes to accept the applicant would be disappointed and or (temporarily) ashamed should he return to Pakistan without pursuing further education in Australia. The Tribunal also accepts that if the applicant’s visa is cancelled, he or his family may suffer some other limited hardship.

21. Regarding the circumstances giving rise to the ground of cancellation, in his response to the NOICC the applicant said he was suffering from a medical condition and financial issues. He then said he ‘could not study and tried to work to pay off his debts’.  He explained that he was suffering “prostate issues”. He provided medical reports from named doctor/s and health records from 2015 & 2016. One medical report dated 13 January 2016,[4] indicated the applicant was diagnosed with ‘small volume urinary frequency’ and that he had a ‘significant underlying pathology’.

    [4] Department –folio 33.

22. The applicant also said he was experiencing financial hardship and he could not pay his school fees or repay the debts he owed to his housemates.[5] He then attempted to work for 20 hours per week in order to pay his creditors; but the financial hardship caused him further anxiety and depression. In his response to the NOICC, the applicant said that due to his inability to pay for his education fees, a College held back his qualification which he needed for his Subclass 457 visa application.[6] However, he also said he had ‘since paid those fees and was in possession of the required certificate from the College which qualified him for a business management position under regulation 457’.[7] 

    [5] Department – folio 25.

    [6] Department – folio 25.

    [7] Department – folio 25.

23. In his response to the NOICC, the applicant also said he had successfully completed two Diplomas at ‘Technical Education in Australia’. He said that in April 2016 he was enrolled to study a Diploma of Accounting course but prior to paying his fees, his school subsequently advised him they were not able to provide this course.[8] He then had to stop studying and became ‘stressed and depressed’.

    [8] Department – folio 25.

24. When discussed at hearing, the Tribunal noted the claimed medical condition (prostate) did not prevent the applicant form working consistently (ten months per year), since he arrived in Australia in 2013. Neither did it prevent him from finishing his Advanced Diploma of Business in April 2015. The applicant did not dispute this at hearing.

25. Next, the Tribunal notes the applicant said he had ongoing financial problems in Australia, which had caused him (at least initially) to not be able to pay his school fees. However, this had since been remedied and the applicant was given his Advanced Diploma of Business after paying his education fees. When then asked if he had sought any medical or other assistance in Australia, for the claimed ‘stress and depression’, the applicant conceded that he had not. The Tribunal notes that some stigma attaches to persons suffering from a ‘disability’ in Pakistan.[9] However, I am not satisfied that any stress or depression prevented the applicant from continuing his studies in Australia. This was because I am satisfied he could have afforded medical assistance if needed; secondly, it did not prevent him from continuing to engage in ongoing work in Australia; and third, he conceded at hearing that he (words to the effect) chose not to study from around 2015/2016, as he wished to pursue a Subclass 457 visa.

    [9] DFAT COUNTRY INFORMATION REPORT, PAKISTAN, 20 February 2019. ‘Health’, [2.26].

26. Furthermore, the Tribunal notes that a principal objective of a Student visa holder in Australia includes that they must remain registered in an appropriate CRICOS course at all times. The applicant had failed to do this for almost ten months at the time the NOICC was issued; and he had failed to successfully completed any course since April 2015.

27. Next, the Tribunal has no evidence the applicant has been unco-operative with the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be impacted if the applicant’s visa is cancelled. Furthermore, after considering all the accepted evidence, the Tribunal is not satisfied the applicant has a compelling need to travel to or remain in Australia.

28. Regarding whether Australia’s international obligations would or may be breached if the applicant’s Student visa is cancelled, the Tribunal has referred to ‘stigma’ that may attach to persons with a disability in Pakistan. The evidence before the Tribunal has not satisfied it the applicant’s (i.e.) ‘stress and depression’ would give rise to a real chance he would suffer serious or significant harm in Pakistan. Be that as it may, the Full Federal Court has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a Protection visa (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015). The Tribunal understands each case needs to be considered according to its merits, however in the present case, if the applicant wishes to pursue this further, I am satisfied that any protection claims could be better canvassed in an alternate visa process.

29. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

30. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

31. The applicant had stated in writing that he had managed to find a company to sponsor him and he wants to remain in Australia ‘under the 457 sponsorship’. He requested the Department not to cancel his visa and give him time to apply for a 457 visa or to leave Australia so that he can apply a 457 visa offshore. At hearing, the Tribunal noted the applicant’s Student visa was cancelled on 14 March 2017 and that therefore, he would only have to wait for just under one more year before he may be granted a temporary visa (i.e. a Subclass 457).

32. Finally, the Tribunal accepts the applicant would prefer to remain in Australia and he may feel (at least temporarily) ashamed if he was to return to Pakistan, without obtaining (i.e.) Bachelor qualifications in Australia. I also accept he would prefer the Tribunal not affirm the decision to cancel his Student visa as he wished to lodge a Subclass 457 visa application. However, given the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study, and given inter alia he may be eligible to be granted a temporary Subclass 457 visa from around March 2020, the Tribunal is satisfied his Student visa should be cancelled.

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

    DECISION

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

    Gregory Sarginson
    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.