Hamza (Migration)

[2019] AATA 6127

Hamza (Migration) [2019] AATA 6127 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hamza

CASE NUMBER:  1726265

DIBP REFERENCE(S):  BCC2017/2921882

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         13 September 2019 at 10:53 am (VIC time)

DATE OF WRITTEN RECORD:                18 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 18 October 2019 at 1:29pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Student) – not enrolled in registered course – no response to notice of intention to consider cancellation of visa – discretion to cancel visa – factors for and against cancellation – enrolled, paid but did not attend classes – steps taken to rectify situation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 October 2017 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  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. The applicant appeared before the tribunal on 13 September 2019 to give evidence and present arguments.  The tribunal also received oral evidence from a friend of the review applicant Mr Assad Zamin.  The hearing was conducted with the assistance of an interpreter in the English and Urdu languages, however the tribunal notes that Mr Hamza speaks exemplary English and did not require the Interpreter for the duration of the hearing.

5. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. The issue in the present case is whether the applicant is the holder of a student visa has breached condition 8202 of schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

6. The first question to be determined is in relation to condition 8202.  As it applies in this case condition 8202(2) requires the applicant to be enrolled in a registered course or in limited cases a fulltime course of study or training.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course. 

7. An examination of the delegate’s decision record notes that the information from the department indicated the applicant did not maintain enrolment in a registered course of study from 27 April 2016 onwards.

8. A notice of intention to consider cancellation was issued to the applicant on 29 September 2017.  Mr Hamza in his evidence admitted that he did not respond to the notice of intention to consider cancellation.  He explained to the tribunal that although the notice of intention to consider cancellation was sent to his email and received to his inbox he did not see it on or around the relevant time being 29 September 2017.  Mr Hamza informed the tribunal that the notice of intention to consider cancellation came to his attention on or about the time when he received the delegate’s decision to cancel his visa shortly thereafter.  That was the explanation provided for the non-response to the particular notice.

9. In evidence at the hearing Mr Hamza admitted he was not enrolled in a registered course of study from 27 April 2016 onwards.  He was supposed to be enrolled and was enrolled and paid first semester fees for a course being a Bachelor of Accounting at the Group College in Sydney.  Mr Hamza gave further evidence that he did not start that degree.

10. On the evidence before the tribunal the tribunal is satisfied that the applicant was not enrolled in a registered course of study from 27 April 2016 onwards and accordingly the tribunal finds that the applicant has not complied with condition 8202(2).

11. Having found that the applicant has not complied with the condition of the visa the tribunal must now 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 departments Procedures Advice Manual PAM 3 general visa cancellation powers.

12. As to the purpose of Mr Hamza’s travel and stay in Australia and whether the visa holder had a compelling need to travel or remain in Australia the tribunal has had regard to the following matters.  The applicant was granted a student temporary class TU higher education sector subclass 573 student visa on 18 March 2016 for the purpose of undertaking an approved higher education level course of study at Group College in Sydney in a Bachelor of Accounting course.

13. Mr Hamza also started an English course with ELICOS prior to his Bachelor of Accounting course commencement date.  Mr Hamza gave evidence that he has successfully completed his ELICOS English course and the tribunal accepts that evidence.  Therefore, on the evidence before the tribunal the tribunal does not find that Mr Hamza’s original intention in coming to Australia was for a reason other than to study.

14. The Tribunal so finds that the applicant has no compelling need to remain in Australia permanently and that he has demonstrated his primary purpose as being to study.  I give this factor some weight towards the visa not being cancelled. 

15. As to the compliance with condition 8202 there is no evidence before the tribunal of breaches of visa conditions other than the breach in issue, being no enrolment in a registered course.

16. Mr Hamza has admitted that he was not enrolled in his relevant course from 27 April 2016 onwards and has sought to give reasons for the non‑enrolment after that time.  Mr Hamza gave credible evidence and honest evidence that he simply made a mistake in not turning up to the classes in which he was enrolled, being classes for a Bachelor of Accounting degree.  Mr Hamza gave further evidence that he was very young when he came to Australia, he was a 20 year-old man from Pakistan.  He did not know anyone in Australia and found new life in Australia somewhat confronting and these factors contributed towards his not attending classes when he ought to have done so.

17. The tribunal also notes that there is a considerable time lapse between the period of non-enrolment and the time of the receipt of the notice of the intention to consider cancellation, more than eight months.  Based on the evidence, the tribunal also finds that there is not a compelling reason for the non-response to the notice of intention to consider cancellation.

18. The tribunal finds that based on the matters set out in paragraph 16 hereof the reason for the breach was not reasonably outside the control of Mr Hamza.  Whilst the tribunal finds that the applicant did breach the condition the tribunal finds there was no particularly compelling reason for the breach that was beyond the control of the applicant and the tribunal gives this some weight towards the visa being cancelled.

19. As to any hardship that may be caused by the cancellation of the visa the tribunal has had regard to Mr Hamza’s evidence that his family are currently living in Pakistan being his mother, father, and four siblings.  He is one of five siblings in total and the eldest male child of a Pakistani family.  Mr Hamza gave evidence that it will cause him some embarrassment and hardship in his family if he returns home to Pakistan without having completed his degree.

20. Evidence was also given by Mr Zamin, the witness in the proceeding, that some financial hardship would be suffered if Mr Hamza is to return home without having completed his degree because the money spent will have been wasted.

21. On the basis of that evidence the tribunal accepts that there may be some hardship to Mr Hamza as a result of the cancellation.  However, there is no evidence of other family members being impacted in Australia by the cancellation and the tribunal therefore gives this minimal weight towards the visa not being cancelled.

22. As to the circumstances in which the cancellation arose Mr Hamza gave extensive and credible evidence as to his reasons for the cancellation of his Bachelor of Accounting degree.  He gave evidence that after the enrolment was cancelled he sought advice from his migration agent who was in Pakistan at the time.  Mr Hamza gave evidence that he had made a mistake and he sought advice from his migration agent as to what steps he should take to rectify the cancellation of his enrolment.  The migration agent was unhelpful to Mr Hamza and no steps were taken that could sensibly assist Mr Hamza to obtain re‑enrolment in any course thereafter.

23. Mr Hamza gave evidence that he went to the university three times to ask what he could do about the cancellation of his enrolment.  Mr Hamza gave further evidence that the university informed him that he should simply contact his migration consultant and the migration consultant informed him that he would have to deal with these matters on his own.  The tribunal has some sympathy for those circumstances, however on the basis of that evidence and the applicant’s earlier reasons for his non enrolment (set out in paragraph 16 hereof) the tribunal finds that the circumstances surrounding the cancellation were matters reasonably within the control of Mr Hamza and the tribunal therefore gives this significant weight towards the visa remaining cancelled.

24. As to past and present behaviour of Mr Hamza towards the Immigration Department there is no evidence before the tribunal of any conduct on the applicant’s part that would be of concern to the Tribunal.  The tribunal gives this some weight in favour of the visa not being cancelled.

25. Mr Hamza gave evidence that there are no persons in Australia whose visas would be consequently cancelled under section 140 of the Act as a result of the cancellation of his visa and therefore the tribunal gives this factor no weight in favour of the visa not being cancelled.

26. As to any mandatory legal consequences that would flow as a result of the cancellation the tribunal notes that if the visa were to be cancelled Mr Hamza would be excluded from making certain applications for certain types of visas, that he would perhaps be subject to detention and removal from Australia.  However, the tribunal notes that these are mandatory consequences of the legislation and in view of the circumstances surrounding the reasons for the cancellation of the enrolment the tribunal gives this little weight in favour of the visa not being cancelled.

27. There are no international obligation, including non-refoulement and best interests of the children as a primary consideration factors, which are considered in this case as they are not relevant.

28. As to any other relevant matters, Mr Hamza informed the tribunal candidly and honestly that he had simply made a mistake insofar as his non‑attendance at his Bachelor of Accounting classes were concerned.  Mr Hamza gave further evidence that he does not want to return home without a degree, that it will affect his career, and it will cause him embarrassment within his family.  The tribunal affords this a little weight in favour of the visa not being cancelled.

29. As set out above, it is clear that the breach of the visa condition does not reveal any bad faith on the part of Mr Hamza who has given candid evidence before the tribunal today.  However, it is clear based on the matters set out above that the matters that led to the breach of the visa condition were matters reasonably within Mr Hamza’s control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa being cancelled and I so find.

30. Considering the circumstances as a whole the tribunal concludes that the visa should be cancelled.  The tribunal affirms the decision of the delegate to cancel the visa.

    DECISION

31. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member