Hamza (Migration)

[2020] AATA 1292

Hamza (Migration) [2020] AATA 1292 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hamza

CASE NUMBER:  1916792

HOME AFFAIRS REFERENCE(S):          BCC2016/3545706

MEMBER:Jason Pennell

DATE:3 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made 3 February 2020 at 2.49pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – enrolment in a registered Higher Education course ceased – applicant’s changed courses to Accounting – non-commencement of studies – financial hardship – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 360
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 16 December 2016 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 pursuant to s.116(1)(b) of the Act on the basis that the applicant was in breach condition 8202 of the Act in that he was has not been enrolled in a registered course since 8 March 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.On 17 December 2019 the applicant was sent a notice under s.360 of the Act inviting him to appear before the Tribunal to give evidence and present arguments in relation to his application to review the delegate’s decision on 13 January 2020 at 11.30am. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. However, on 13 January 2020 at 11.40am the applicant made a phone call to the Tribunal advising that he was in Sydney. He claimed that he had reviewed his emails the night before and realised he had a hearing scheduled in Melbourne. The applicant confirmed to the Tribunal that his email and mobile number were correct and up to date.

5.As a result, on 13 January 2020 at 11.50am the Tribunal contacted the applicant by telephone and advised that a new hearing had been scheduled for 31 January 2020 at 10.30am.

6.On 13 January 2020 the applicant was sent a notice under s.360 of the Act inviting him to attend a hearing appear before the Tribunal to give evidence and present arguments in relation to his application for a review of the delegate’s decision on 31 January 2020 at 10.30am. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. In addition the notice advised the applicant that in the event he did not appear before the Tribunal at the scheduled hearing it may proceed to make decision on the review without taking any further action to allow or enable him to appear before the Tribunal. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The applicant did not appear before the Tribunal at the scheduled time and place. The Tribunal has not received any satisfactory reason for the applicant’s non-appearance.

7.In these circumstances, the Tribunal has decided to proceed to make a decision based on the information provided by the applicant in his application for review.   As such, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.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?

9.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).

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

11.The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 13 August 2015 and the stay period of the visa was extended up to and including 15 March 2017. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study in a Diploma of Business and Bachelor of Business. On 8 September 2015, the applicant changed his enrolled to enrol in a Bachelor of Accounting which the applicant did not complete and was cancelled on 8 March 2018. The applicant has not enrolled in any other course.

12.PRISMS indicate that the applicant has not completed any course, diploma or degree in which he has been enrolled and has not been enrolled in a registered course of study from 8 March 2016 to the date of cancellation.

13.The departmental file indicates that that the applicant issued a Notice of Intention to Consider Cancellation (NOICC) on 2 December 2016.

14.The applicant’s response to the NOICC was as follows: 

Hi I am Muhammad and I just received your mail. I just want to explain my situation i came to Australia last year for a better future and better studies. Unfortunately I started missing my family very badly from the day one as I had no known person in Melbourne. I felt homesick. I went to doctor and he suggested me to take a gap from studies. I gave my medical certificate to my uni for deferment and i went to Perth where one of my friend lives so that he can help in adjusting to this new environment unfortunately while I was in Perth my uni cancelled my application stating that you haven't given much proof so we can't approve it and cancelled my coe As I was so lonely I never took that matter seriously anyways after 5 months I came back to Melbourne and found some friends in Melbourne city and we soon became good friends but they had some bad habits eg gambling and they use to take me to casino . my father transferred me funds to pay my tuition fees which I lost in casino and couldn't able to pay my fees anyways I told my dad that I have done a mistake he transferred me funds again and my friend insisted me to win my old money back and took me to Cas again and we lost it again now I can't tell my father that I have done that mistake again as I am the only son of my father and he have plenty of hopes from me I don't want him to get an heart attack so I faced bundle of hardships but didn't tell my father and survived on my own now as per my father knows I am studying and my fees is due next month he will be sending me fees and I will get admitted in any good university and will start study again as I was a bright student since start but some bad company ruined my important one year of life. I have also banned myself from crown casino and I have promised to myself I will never go to that place. It's my humble request to you guys please give me one month and I will be on track I promise I have also taken the offer letter from university of sunshine but am waiting for funds from my family which I will get within few days because I don't want to ask finds immediately from my father as he knows my fees will be due next month plz plz for the sake of my future don't take any serious step Jesus knows I have spoken each and everything right and I want to study again as i am now in love with Australia and want to get good degree from here plus i can't face my father if anything happens and the only step I can do is jump from the river which I won't as am not a coward but please I want to get my life on track I have banned myself from crown I have quit friendship with that morons and made some good friends so please give me a chance I still have a 3 year visa left and my degree is of 3 years as well which I promise I will complete in the given time

Yours sincerely
Muhammad Hamza
Sent from my iPhone (sic)

15.In his response to the NOICC the applicant claims to have extenuating circumstances to explain his noncompliance with condition 8202, he does not dispute the fact that he was in breach of the condition by not being enrolled in a registered course as such there are grounds for cancellation.

16.Therefore, 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

17.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 Procedural Instruction ‘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.

18.The applicant’s stated purpose of travelling and staying in Australia was to study. However, based on the PRISMS the applicant has not been enrolled in a registered course since 8 March 2016

19.He claims in his repose to the NOICC that as a result of the culmination of a series of adverse personal events including being homesick and gambling, he ceased studying. Nevertheless, he has remained in Australia since 8 March 2016 (nine months up to the date of his cancellation) without having enrolled in a registered course of study. This is in breach of the condition upon which his visa was granted. As a result the tribunal places little weight on this consideration in the applicant’s favour.

The extent of compliance with visa conditions

20.There is no evidence to indicate that the applicant did not comply with other conditions of his visa. However, the information before the Department clearly indicates that the applicant has not been enrolled in a registered course of study since 8 March 2020.

21.While the applicant did respond to the NOICC he has not appear before the Tribunal to give evidence and present arguments in support of his application for review.  As a result the applicant has not presented any evidence to the Tribunal in support of those matters outlined in his response to the NOICC. Accordingly, the Tribunal gives no weight to this consideration in favour of the applicant and in fact places considerable weight to its consideration toward cancelling the applicant’s visa. 

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

22.The applicant in his response to the NOICC refers to difficulties he may face if his visa is cancelled and he is to return to Pakistan. He refers to the fact that he wants to study in Australia and that he will be unable to face his father in the event that he returns to Pakistan. The applicant’s response to the NOICC indicates that the applicant had been using the money his father provided him to pay his tuition fees to gamble at the Casino. In such circumstances the applicant’s father may well have good reason to have been upset with the applicant. In any event, had the applicant attended the hearing, the Tribunal would have enquired more deeply in to the hardships he claims he will suffer in the event his visa is cancelled. In particular, it would have enquired as the effect his gambling has had on his life and his ability to study. In addition it would have enquired as to the degree of hardship he may suffer in the event that he is returned to Pakistan both from his family and more broadly. 

23.The Tribunal notes that the applicant has not provided any medical or other information to support his claims concerning his gambling addition, homesickness or any other mental health considerations that may have resulted from the personal difficulties he describes in his response to the NOICC.

24.According to the the departments records there are no secondary visa holders or members of the family unit holding a visa in association with the applicant. Therefore, the Tribunal gives no with to this consideration in favour of the applicant.

25.While the Tribunal acknowledges that the applicant will suffer some hardship as a result of the cancellation of his visa and being required to depart Australia. However, the Tribunal is not satisfied that the hardship as describe by the applicant in his response to the NOICC is so significant as to allow the applicant to maintain his visa. In fact, given the applicant’s personal issues involving his homesickness and gambling it may be argued that he would, in all the circumstances be better off returning to Pakistan to obtain the comfort and support of his family, despite any disappointment or shame he would experience as a result of not having completed any registered course. 

26.In any event, the Tribunal notes that he will be eligible to make application for a Bridging E visa that will allow him to remain in Australia pending the finalisation of any outstanding matters.   

27.The Tribunal gives this significant weight towards the visa being cancelled.

Circumstances in which ground of cancellation arose.

28.According to the applicant’s NOICC response, his non-enrolment and breach of condition 8202 was due to a culmination of adverse personal events. These include feeling homesick; the education provider refusing his request for deferment; falling into the wrong company; excessive gambling; and using his tuition fees for gambling. Many of the elements of these claimed circumstances are plausible in themselves.

29.However the applicant claimed he provided a medical certificate to request a deferment but did not provide it to either the Department or the Tribunal. The delegate noted the cancellation of the enrolment in a Bachelor of Accounting was due to non-commencement of studies and not due to unpaid tuition fees. This undermines at least the credibility of one of the applicant’s claims about his non-enrolment and invites other doubts about excessive gambling and the keeping of poor company. In addition, the applicant did not appear before the Tribunal to elaborate on these claims, inviting the Tribunal to consider that the claims as described by the applicant are not credible or reliable.

30.As such, the Tribunal does not accept the applicant’s claims as creditable or reliable in circumstances where they are unsubstantiated, inconsistent and vaguely articulated. The applicant did not appear before the Tribunal to give evidence and has not provided any documentary evidence in support of his of adverse personal events leading to the grounds for cancellation as claimed.

31.Accordingly, the Tribunal does not accept that the claimed circumstances to be credible, extenuating or beyond his control. The Tribunal gives this significant weight towards the visa being cancelled.

Past and present behaviour of the applicant

32.The applicant has not appeared at any of the hearings scheduled by the Tribunal in relation to his application for review. Otherwise the applicant has been courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

33.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

34.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

35.The circumstances of this case are such that they would not engage Australia’s international obligations. Accordingly, the Tribunal places no weight on this consideration in the applicants favour. 

Mandatory legal Consequences.

36.If the visa is cancelled the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

37.In addition the applicant will be subject to ss.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

38.The Tribunal gives some weight to this consideration in the applicants favour.

Other relevant factors

39.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

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

DECISION

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

Jason Pennell
Senior 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.