Hamza (Migration)

[2018] AATA 5187

Hamza (Migration) [2018] AATA 5187 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hamza

CASE NUMBER:  1622495

HOME AFFAIRS REFERENCE(S):          BCC2016/3545706

MEMBER:Brendan Darcy

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2018 at 1:35pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa– applicant failed to attend tribunal hearing – no response to the hearing invitation letter – not enrolled in a registered course of study – breach of condition 8202– not a genuine student – Decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 116,140,
Migration Regulations 1994, r 2.43, Schedule 8

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 on the basis that the ground for cancellation had been made out and the grounds for cancelling the visa outweighed the grounds for not cancelling. 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, a Pakistani national, applied to have the delegate’s cancellation decision to be reviewed by the Tribunal on 28 December 2016, with the delegate’s decision record attached to the review application. 

4. On 11 September 2018, the Tribunal forwarded by email to the applicant an invitation to attend a scheduled hearing at the Tribunal’s Melbourne offices on 25 September 2018 at 1.00PM.

5. Right up to the day of the scheduled hearing, the applicant did not respond to the invitation.

6. On the date of the scheduled hearing, the applicant did not appeared before the Tribunal at the scheduled time. The hearing was extended as further ten minutes before closing the hearing due to the applicant’s non-appearance. At no stage did the applciant forward any requests for a postponement.

7. The Tribunal waited a further 24 hours to allow any late postponement requests. At the time of making this decision, the Tribunal did not receive any submissions regarding the applicant’s non-appearance before scheduled hearing at all. Accordingly it proceeded with its decision making on this review application,

8. 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

9. 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?

10. 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).

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

12. 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 was cancelled on 8 March 2018 and had not enrolled any further course work.

13. PRISMS also indicates that the applicant did not complete any course enrolled diploma or degree.

14. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 2 December 2016).

15. The decision record further indicates the applicant responded to his invitation to comment. While the applicant claimed to have extenuating circumstances to explain his non-compliance with condition 8202, the applicant did not dispute there were grounds for cancellation.

16. Based on the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 8 March 2016 and the date of cancellation.  

17. Accordingly, the applicant has not complied with condition 8202(2) and the grounds for the cancellation of this visa existed.

    Consideration of the discretion to cancel the visa

18. 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’.

19. Below is a copy of the applicant’s written reasons not to cancel his student visa that he submitted to the Department as his NOICC response:  

    Hi I am muhammad And I just recieved 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 defferment 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 please I want to get my life on track I have banned my self 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)

20. As outlined above, the applicant was invited to attend a hearing but did not attend. The applicant did not provide any evidence from a medical professional that he was unfit to attend a hearing. On the day of the scheduling hearing and up to the time of writing this decision, the Tribunal has not received any further evidence of any kind. The Tribunal is satisfied the applicant was provided with a meaningful opportunity to give evidence and present evidence. 

    The purpose of the visa holder’s travel to and stay in Australia

21. According to the decision record, the applicant’s NOICC response mentions that the applicant was subjected to a culmination of a serious of adverse personal events which led him to see his studies and to remain in Australia for nine months without being enrolled. The Tribunal notes that the applicant describes himself as a bright student but had some bad company had ruined one significant year in his life. HE also claimed he attempted to gain a letter of offer from the ‘university of sunshine’ (There is no such education provider) and that he was waiting for funds from his family and he promised to complete his degree. These arguments about the purpose of the applicant’s travel to Australia were vague and platitudinous. There was no mention of any career ambitions related to business management or accountancy.  Had the applicant appeared before the Tribunal, it would have asked the applicant to elaborate on these vague claims, such as his academic and corresponding career goals. However he did not appear or even request a postponement.

22. The Tribunal notes that the applicant had not completed any enrolled diploma or degree since arriving in Australia while holding a student visa or any subsequent enrolled at all following the cancellation of the applicant’s Bachelor of Business, further indicating he did not arriving in Australia for the purposes of study or that he will be a genuine student in the future.

23. When cumulatively considering this evidence, there is very little evidence the applicant’s original intention for his travel to and stay in Australia was for the purpose of study and the Tribunal gives this little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

24. There is no evidence before me to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance.

25. However the applicant was not enrolled in a registered course for a substantial amount of time – about nine months.. The Tribunal considers this significant to the question whether his visa should be reinstated. Although he responded to the NOICC, he has not attended the hearing or provided any further information to the Tribunal to explain the breach. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

26. In the applicant’s response to the issued NOICC, the applicant nebulously mentions that he wants to study in Australia  as he is in love with it and because he can’t face his father if anything happens and that the only step available to him was to ‘jump into the river’ which he won’t because he is not a coward.

27. Again, had the applicant attended a scheduled hearing, it would have enquired more deeply into the degree of hardship the applicant might face. However, he did not, so inviting the Tribunal to consider the degree of hardship is not significant or severe. The Tribunal also notes that there is no medical information submitted to the Tribunal to consider in this regards.

28. Based on the very limited information before it, the Tribunal accepts that the applicant may suffer some hardship if the visa remains cancelled. However, it finds on the evidence that he has not demonstrated any significant hardships. The Tribunal gives this factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

29. According 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 providing refusing to his request for deferment; falling into the wrong company; excessive gambling; and using the tuition fees for gambling. Many of the elements of these claimed circumstances are plausible in themselves.

30. 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.  Neither did the applicant appear before the Tribunal to elaborate on these claims, further inviting the Tribunal to consider these claimed circumstances were not credible or reliable claims.

31. In short, the Tribunal does not accept these unsubstantiated, inconsistent and vaguely articulated claims to be credible or reliable evidence that the applicant experience a serious of adverse personal events leading to the grounds for cancellation.

32. 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 conduct of the visa holder towards the Department

33. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

34. Not relevant.

    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

35. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly returned if he is unlawful. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

36. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

37. There is no evidence before the Tribunal, including in the applicant’s written response to the NOICC that this is relevant and it gives this factor no weight.

    Any other relevant matters

38. The Tribunal notes that the applicant had an opportunity to give evidence and present argument to the Tribunal in favour of not having his visa cancelled. However the applicant did not appear before it or provide any explanations for his non-appearance. The Tribunal gives some weight in favour of the applicant’s for the visa not being cancelled.

    Consideration of the discretion to cancel the visa

39. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

40. In this matter, those factors in favour of having the visa not cancelled are significantly outweighed by those factors in favour of the visa remaining cancelled.

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

    DECISION

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

    Brendan Darcy
    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.