Hamza (Migration)

[2018] AATA 2334

Hamza (Migration) [2018] AATA 2334 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sher Hamza

CASE NUMBER:  1618283

DIBP REFERENCE(S):  BCC2016/3022030

MEMBER:Rachel Westaway

DATE:9 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2018 at 9:30pm

CATCHWORDS

Migration – Cancellation –  Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course of study – Substantial gap in study – Has not breached other visa conditions – Degree of hardship – Family disapproval of marriage – Withdrawal of financial support from parents – Wife’s mental health treatment – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994, r.2.43 Schedule 4 Criteria 4013 Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 2016 made by a delegate of the Minister for Immigration 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 was not enrolled in a registered course of study and did not dispute this. The delegate considered the information before him and found the reasons provided were not enough not to cancel the 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.

3. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Gul-E-Afshan. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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).

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

9. The applicant provided the Tribunal with a copy of the delegate’s decision. The Tribunal explained that as outlined in the delegate’s decision the applicant’s visa was cancelled because he was deemed not to be enrolled in a registered course of study from 8 August 2015 until when his visa was cancelled in October 2016. These dates were detailed in the Provider Registration and International Student Management System (PRISM).

10. The applicant received a Notice of Intention to Consider Cancellation on 3 October 2016 and provided an email response on 17 and 18 October 2016.

11. The applicant confirmed that he was not in a registered course of study from 8 August 2015. He provided details to support the reasons why which will be outlined within the decision.  

12. On the evidence before the Tribunal, namely the applicant’s own admission and the details contained within PRISM, 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

13. 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.

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    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

15. The applicant confirmed he was born in Pakistan and came to Australia on 19 April 2014 to study a Bachelor of Accounting at Cambridge College. He outlined in his application that his intended purpose was to come to Australia to study General Purpose English, Certificate IV in Frontline Management, Diploma of Management and a Bachelor of Business (Accounting).

16. He initially studied ELICOS and a Certificate 3 and 4 of Business Management and he completed the Certificate 3 in November 2014 and the Certificate 4 in May 2015. On the 8 August 2015 the applicant’s was meant to enrol in a Diploma of Business and Management.  He claims it was at this point that his studies were affected.

17. There is no further evidence before me that the applicant’s travel to and stay in Australia was for anything other than study. The Tribunal notes that he did enrol in the courses he initially stated he wanted to. I am willing to accept that the applicant’s purpose in traveling to and staying in Australia was to study and I give this some weight in favour of the visa not being cancelled. However, I am not satisfied that this is enough of a reason to give this significant weight not cancel his visa due to the significant period in which he was in breach of a condition and not enrolled in a registered course.

    the extent of compliance with visa conditions

18. There is no evidence before me to indicate that the applicant breached other visa conditions whilst holding his student visa.

19. However I have concerns with the fourteen month period in which the applicant was not enrolled in a registered course. Whilst I note that there is no evidence he breached other conditions, the significant period of time in which he was not enrolled leads me to give this factor little weight towards the visa not being cancelled.

    The circumstances in which ground of cancellation arose.

20. On 17 October 2016, the applicant responded to the NOICC. He outlined the following circumstances which led to the cancellation. The tribunal notes that his explanation is consistent with that which he gave to the Tribunal during the hearing.

21. He confirmed he was not enrolled in a registered course of study since 8 August 2015 and that he has failed to meet the condition 8202(2)(a) of his student visa. He stated it was due to exceptional circumstances beyond his control and that he genuinely wanted to complete his studies but his parents’ opposition to his marriage and withdrawal of financial support for his studies caused him grave concerns. He said that despite his genuine intentions, he could not enrol in his course at that time. The situation was very stressful and his wife developed anxiety and sought professional help. The applicant confirmed he did not seek help.  He stated that he only temporarily stopped studying while he tried to get his personal life in order. He was caring for his wife and had to be strong but he was failing to look after himself.

22. The applicant and his wife were both at the hearing and gave evidence. They were consistent in their explanation that their respective families were opposed to their marriage. The applicant stated that their parent’s disapproval played heavily on both of them and his wife also deferred her studies for approximately two months. His family after much discussion agreed reluctantly to support him financially so he approached Cambridge College about re-commencing study however the college did not agree. He said that he approached alternative education providers. However he was contacted by Immigration in regards to the cancellation of his visa and he hopes that it is not cancelled and he can enrol in a Bachelor of Accounting and complete his studies prior to returning to Pakistan. He believes the situation is a one off and a result of exceptional personal circumstances that were beyond his control. He confirmed that he has genuine intentions to study in Australia.

23. The applicant and his wife Gul E Afshan met in English class prior to coming to Australia.  The relationship started on 27 February 2015.   He said his father was strict and he thought he should be working before he can ask his parents if he can marry his now wife. He tried to plan this and thought if her parents agree to the marriage then they will work it out. He said that his wife was going to England as her sister was there but she changed to Australia. He confirmed that her parents knew he would be in Australia too. The applicant’s wife started studying straight away. She completed a Certificate 3 and she deferred the month of August and September as she was sick. He said that she had a fever and suffered depression for one semester.

24. He said that they were on separate visas and she lived by herself for the first month in Australia until they were married. The applicant’s wife told her parents she was getting married but the applicant did not tell his.  They were married on the 27 March 2015 in a Mosque in Doncaster. The applicant is 34 years of age and is the youngest in the family.

25. The applicant told his parents around fifteen days after he was married in April 2015. Neither set of parents were happy about the marriage. They stopped their financial support of the applicant and his wife.

26. Both the applicant and his wife stated that they have started to accept it. They have met a few times. The couple would like to return to Pakistan and resolve the disputes between the families. The applicant’s wife has not met her in-laws. She has spoken to the applicant’s mother in February but not his father because he is not willing. The applicant’s wife said she believed his parents would financially support the applicant in his studies.

27. On 20 April 2017, the applicant provided the Tribunal with a medical certificate dated 3 September 2015 from Coburg Medical Centre confirming that his wife Ms Gul E Afshan attended two psychology treatment sessions dated 26 August 2015 and 3 September 2015 by Stephen Brown and was treated for high levels of anxiety and depression distress and she was being treated with Cognitive Behaviour Therapy.

28. A letter dated 31 August 2015 from the same centre confirmed that the applicant’s wife suffers from symptoms suggestive of depression and anxiety. These symptoms were detailed and it stated that a recent job loss and family issues induced these symptoms. It requested she be given 6-8 weeks off from study to commit to treatment.

29. An additional letter dated 21 August 2015 from the same doctor referring her to Stephen Brown of the same clinic and outlining she had an adjustment disorder.

30. The Tribunal asked why this impacted on him being unable to study in a registered course. He said he was very stressed about the situation and her parents were angry. His wife could not work or study and so she lost her job. He said that at the end of August he eventually read his emails and realised there was an issue with his study and visa.

31. He said his wife saw a doctor and he had to take care of her.  He had no money to pay for his studies and when he found out by email he was not enrolled he asked if he could have some time off because he needed to earn money because his family were not supporting him. However the course provider did not agree.

32. The applicant said that his wife’s visa was not cancelled because she was granted deferment for a term due to illness. The Tribunal asked the applicant why he did not request this if he needed to care for her. He said he was so upset and stressed and in addition to caring for his wife because of her depression he was ostracised from his family.

33. The Tribunal asked the applicant why he did not return to Pakistan and he said that his father had disowned him because it was an out of family relationship. He said it was very difficult. He confirmed he did not seek the help of a doctor or counsellor because he thought that after time they will come around. He said his brother would send money through cousins to help him. He was asked why he didn’t just go home and get a job and then reapply for his student visa when he was ready. The applicant said he had to wait for his wife because she has more study to complete and will finish in 2020.

34. The Tribunal asked the applicant what he was doing when he was not enrolled in a course and he said that he had been speaking with his agent and he had a part time job and worked 20-21 hours. He drives a truck so he can meet his expenses. The Tribunal asked the applicant what would happen if his visa was cancelled and he said that he would like to finish his studies and then he will return to Pakistan because he has a job offer with his brother in law. The Tribunal asked the applicant why he can’t return now to Pakistan and work for his brother-in-law. He said he could but his father would need to approve it. He said that his father may not allow him to employ him. He said the last time he spoke with his father was in October or November 2015.

35. The applicant confirmed that his brother is allowed to send him money. The Tribunal suggested that if this was the case then it would appear that his father may permit his cousin to employ him should he return to Pakistan. The applicant confirmed that his wife’s parents send money to his wife to help them.

36. The applicant’ wife is studying Certificate 3 in Commercial Cookery. She will complete her course in 2020. She also works in a restaurant.

37. She said she faced severe depression and she had a deferral and she is responsible for that. She stated her husband had no one to share his problems with. She said that she would talk to him but he was unable to share his problems with her.

38. She said that it will affect her if the visa is cancelled because her husband supports her financially.  However the applicant’s wife also confirmed that her parents provide some financial support.

39. She stated that she was depressed in August 2015 but recovered by February 2016. She said she was not on any medication. She said her depression caused her to lose her job and she could not do anything. She searched for jobs and was studying She was able to get up. She did not go out each day but once or twice a week. She said she was not in the right mood to go out. Her husband was with her. He would stay some of the days. He would do most of the chores at that time. She said that their financial situation was not good so that is possibly why he could not enrol. She said that she had savings from her parents so she had money to enrol.

40. I have considered the applicant’s explanations for why he was not enrolled for this significant period and therefore in breach of a condition. Whilst I accept that the circumstance, namely that his wife was suffering depression and the applicant chose to care for her and that the applicant’s family and his wife’s family were opposed to their marriage and as a consequence of this his father stopped speaking to him and withdrew financial support, I am not satisfied that these circumstances are responsible for a fourteen month period in which the applicant was unable to enrol in his studies. Furthermore I am not satisfied that these circumstances are beyond the applicant’s control. O make these finding based on the fact that the applicant’s wife was diagnosed with mental health issues yet she herself did not require fourteen months away from her study. In addition to this, she was able to laisse with her course provider and request and be granted a deferment for a two month period. However the applicant did not do this. Whilst I appreciate that the applicant faced strong opposition from his family and in-laws based on his marriage, I do not accept that this prevents the applicant from attempting to study at the very least. In this instance the applicant simply did not enrol. This decision was made consciously. I do not accept that the applicant simply forgot due to the pressures he faced and the stress he was under. I note that the applicant stated that his family withdrew financial support and this contributed to him being unable to enrol. I do not accept that this was a factor in the applicant being unable to enrol. The applicant stated that he received money from other sources and his father is now willing to financially support him again. The Tribunal has no evidence to support the applicant’s claims that financial support was withdrawn or that he requested special consideration pertaining to payment of fees and was rejected. Furthermore, this occurred after the applicant tried to return to study and not when he allowed his enrolment to lapse. The applicant may well have experienced his own mental health issues based on the stresses he faced, however he did not seek medical help whilst his wife did. I do not accept that he would not have known to do this given his wife had engaged medical support and provided her own documentary evidence. The Tribunal accepts the circumstances as detailed by the applicant but does not accept that these were circumstances which led or justified the applicant to be unenrolled for such a significant period of time. As such, the Tribunal gives the circumstances surrounding the breach minimal weight towards the visa not being cancelled.

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

41. I have considered the applicant’s response to the NOICC, his and his wife’s evidence at hearing and the submissions made.

42. Whilst I acknowledge that some hardship may be caused to the applicant should he be required to depart Australia, I note that he will be eligible to apply for a bridging visa E which may allow him to remain lawfully in Australia so that he can finalise any outstanding matters.

43. I have considered the applicant and his wife’s situation in that if the applicant’s visa is cancelled he will not be able to remain in Australia yet his wife has until 2020 to finish her studies in Australia. Whilst the Tribunal appreciates that such a separation would have a significant impact on the couple, it does not prevent them from being together. The applicant’s wife has the choice of returning to Pakistan and deferring her studies until the applicant’s ban is lifted and he is able to apply for another visa. Alternatively the applicant’s wife can study in Pakistan or she can remain in Australia or seek other options such as distance education.

44. I note that the applicant’s wife has suffered from mental health issues in the past which were exacerbated by stress. I appreciate that such a situation where her husband’s visa is cancelled would be stressful. However, the Tribunal notes that the applicant’s wife has managed her mental health issues and sought help when needed.

45. I accept that there may be financial implication for the applicant and his wife, namely his wife may choose to return to Pakistan and not complete her studies. The Tribunal appreciates that whatever choice she makes may have an impact on the couple’s financial situation.

46. I accept that the applicant and his family may suffer some financial and other hardships if the visa remains cancelled. I am also conscious of the impact a cancellation will have on the applicant’s wife and the dilemma she will face pertaining to her own studies.  However, the breach is a serious breach. The applicant placed significant weight on his wife’s mental health issues and lack of family support for their marriage and withdrawal of financial support as key factors leading to the breach yet the applicant’s wife managed to remain enrolled in her course and sought approval from the provider for a two month deferment. She also sought counselling and support. Whilst people deal with situations in their own unique way, whilst on a student visa, there is a significant onus on the visa holder to ensure they meet the conditions attached to that visa. The applicant by the very nature of his visa was here to be enrolled in a course and study. He did not do this for fourteen months. The Tribunal is of the view that in spite of the stressful circumstances the applicant would have known this. There is no evidence that he ever sought deferment, support or even immigration assistance during this period. Furthermore his wife who he was living with at the time did. In addition to this, the impact on her studies was two months not fourteen.  In weighing up all of these factors I accept that a cancellation of the applicant’s visa would place significant hardships on him and his family however I have considered the significant period of time the applicant was in breach of a condition and place more weight on this.  I therefore give the hardships caused to the applicant and his family only some weight in favour of the visa not being cancelled.

    past and present conduct of the visa holder towards the department

1. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. However the significant period in which the applicant has not been enrolled in a registered course is a serious breach and far outweighs the weight I give to not cancelling the visa based on the applicant’s conduct towards the Department.

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

2. 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

3. If the visa is cancelled he will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia.

4. Additionally, he will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia. He will also be subject to Public Interest Criterion 4013, as a result of this cancellation.

   Whether there would be consequential cancellations under s.140

5. The applicant is married and his wife is also in Australia however she is on a separate student visa and as such the cancellation would not impact on her visa.

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

6. The applicant has not provided any information in regards to this. On the evidence before me, namely his NOICC response, there is nothing to conclude that Australia’s protection obligations would be engaged, and I give this no weight in the applicant’s favour.

   any other relevant matters.

7. Not relevant

8. I have had regard to the claims of the applicant and the information provided. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Rachel Westaway
   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.