HAROON (Migration)

[2019] AATA 2330

HAROON (Migration) [2019] AATA 2330 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AHSUN HAROON

CASE NUMBER:  1708796

HOME AFFAIRS REFERENCE(S):           BCC2016/3577839

MEMBER:Mr S Norman

DATE:6 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 June 2019 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breach of condition – no longer enrolled – applicant claimed not to have required a Confirmation of Enrolment – breach is significant – failed to maintain enrolment – not a genuine Higher Education level student – does not accept applicant has compelling need to travel to or remain in Australia – ongoing support from family – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 198
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223(1A), 573.231, Schedule 8 Condition 8202, 8516, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 2017 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 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis that the applicant was found to have beached condition 8516. 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 3 June 2019 to give evidence and present arguments. The applicant was accompanied by a friend at hearing. The applicant was also represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. That condition stated:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 16 February 2015 (expiry date 15 March 2018[1]). By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 6 April 2017, the applicant was advised that according to the Provider Registration and International Student Management System (PRISMS) it appeared he was no longer enrolled in a bachelors or Masters degree course for the period 9 November 2015 to 10 April 2017 (being a total of 17 months). Therefore, it appeared the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A); and as such it appeared he had not continued to be a person who would satisfy the primary criteria for the grant of the Student visa. Further, it therefore appeared he had breached condition 8516; and his Student visa may be cancelled under s.116(1)(b) of the Act.

   [1] Tribunal – folio 34 (reverse side).

8. The applicant responded to the NOICC. When discussed at hearing, the applicant conceded that he had failed to maintain enrolment in a registered course for around 17 months at the time the NOICC was issued.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

10. 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 28 year old Pakistan citizen applicant’s travel to and stay in Australia, by migration agent submission of 25/05/2019,[2] it was claimed the applicant travelled to Australia on a subclass 573 visa in 2015, and that he arrived in Australia in February 2015. The agent then said the applicant complied with ‘condition 8202’, but then conceded ‘except for one and a half years’.

    [2] Tribunal – from folio 34 (reverse side).

12. At hearing, the Tribunal advised the applicant that subject to his comments, the following information would be the reason, or part of the reason, for affirming the decision under review. After then advising him he may seek an extension of time within which to respond (no such request was made), the Tribunal said that PRISMS records indicated he had been enrolled in approximately 11 courses since arriving in Australia, and that his enrolment had been cancelled in each and every case.

13. When discussed at hearing, the applicant said he had completed three courses in Australia. A Certificate IV in Business at Central College - in 2016; a Diploma of Leadership and Management (Short Package) – in 2017[3]; and an Advanced Diploma of Leadership and Management at the Australian Education & Learning Institute – in 2019[4] (which College was de-registered in May 2019[5]). The applicant claimed not to have required a Confirmation of Enrolment (COE) for the above Advanced Diploma course (though post hearing enquiries indicated the applicant held a COE for this course). Further, and notwithstanding that no successful course was listed on PRISMS, post hearing enquiries indicate the applicant had passed the three abovenamed CRICOS courses between 2015 and 2019 (and the Tribunal accepts this is correct). 

    [3] Department – folio 15 (reverse side)

    [4] Tribunal – folio 37 (reverse side).

    [5] Tribunal – folio 56.

14. The Tribunal notes the applicant also claimed he now wished to study at the degree level in Australia. However, notwithstanding his claimed health issues (discussed below), given his failure to maintain enrolment in a course appropriate to the Higher Education Student visa he was granted for some 17 months at the time the NOICC was issued, and given his six COE’s in bachelor degrees in Australia were cancelled since his arrival, and given his failure to gain any COE’s in degree courses since shortly after his Student visa was cancelled (discussed below), and given his very slow academic progress, taken together, this has not satisfied the Tribunal the applicant’s present intention is to remain in Australia for the purposes of study in a course appropriate to the Higher Education Student visa he was granted.

15. Regarding the extent of compliance with visa conditions, the Tribunal notes the applicant failed to maintain enrolment in a bachelors or Masters degree course for the period 9 November 2015 to 10 April 2017 (being a total of 17 months). After the NOICC was issued on 6 April 2017, the applicant had then obtained a COE for a bachelor’s degree. However, same was cancelled shortly after his Student visa was cancelled on 18 April 2017. Notwithstanding the applicant’s claimed health concerns (again, discussed below), the Tribunal is satisfied this breach is significant.

16. Regarding the degree of hardship that may be suffered by the applicant or his family if his Student visa was cancelled, he said he had ‘put a lot of effort both financially and in terms of time towards his education and professional development goals in Australia’. He also said his family had ‘high hopes for him’. By migration agent submission of 25/05/2019,[6] it was also said the applicant had completed Year 12 in Pakistan but though similar courses are available in Pakistan, the “education facilities and standards in Pakistan are not up to the mark”. It was also claimed that “employers all over the world recognise degrees from Australian schools”. It was said the applicant wished to pursue a career in accounting. It was said the applicant had resided in Australia for “almost the last four years and respects Australian values, law and Australian community”. It was said the applicant’s mother, sister and brother reside in Abu Dhabi (UAE), and one sister resides in Pakistan (at hearing the applicant said another brother and sister reside in Canada). The applicant’s father is deceased. It was said the applicant had his own house in Pakistan, that his brother (in Abu Dhabi) provides financial support for the applicant in Australia, and that the applicant has other relatives in Pakistan. In the same migration agent submissions of 25 May 2019, it was claimed the applicant did not have any strong personal ties with Australia and has no strong incentive to remain in Australia.

    [6] Tribunal – from folio 34 (reverse side).

17. When discussed at hearing, the applicant said he had worked for around 10-12 hours per week (irregularly) for approximately three months shortly after arriving in Australia (in February 2015); he had then remained unemployed; he had then again commenced to work around 10-20 hours per week - though some weeks he did not work at all - between the end of 2017 and the end of 2018 (as a traffic controller). Since then and up to the date of the Tribunal hearing (3 June 2019), he had been employed in irregular computer work (programming).

18. The Tribunal then noted the applicant had claimed to have finished three courses in Australia (which he could use to find work in Pakistan), that his older brother in the United Arab Emirates (UAE), who owned and or operated a transport business there, had largely been able to finance the applicant’s stay in Australia (school fees, rent, food, travel etc) and would presumably be able to assist the applicant re-establish himself in Karachi, Pakistan (where the applicant’s sister and mother mostly resided – and where it was claimed he owned his own house, or at least where he was able to reside); that in Karachi, the applicant would more readily obtain the assistance, support and guidance of his family, and he would be able to find work commensurate with his skills (the Tribunal noted the Pakistan economy was reasonably strong[7]); and that university education – something the applicant claimed to wish to pursue in Australia – was also available and cheaper in Pakistan[8] – and the applicant conceded that one sister had studied in Karachi, but he believed that degree qualifications obtained in Australia were more prestigious.

    [7] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 20 February 2019, ‘Economic Overview’, p.10.

    [8] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 20 February 2019, ‘Education’, p.12.

19. After considering the evidence, the Tribunal will accept the applicant or his family would be disappointed with the applicant if his visa is cancelled. The Tribunal is also satisfied that his career progress may be disrupted (at least temporarily). I also accept that some degree qualifications obtained in Australia, may be considered more prestigious than a some degree qualifications obtained in Pakistan (as claimed by the applicant). However, after considering the country information and other accepted evidence herein, the Tribunal also believes the applicant’s career progress and or studies would also be greatly benefited by the assistance and support of his family in Karachi.   

20. Regarding the circumstances in which the ground for cancellation arose, in his response to the NOICC the applicant said he experienced discomfort while studying due to a LASIK eye procedure (surgery), which was completed in Pakistan in January 2015[9] (evidence of Australian medical attendance was also lodged[10]). He said his doctor had advised him to avoid heavy reading or writing schedules. With the Tribunal, the applicant also lodged:

    ·     A Medical Certificate dated 9 June 2015[11]. That said the applicant attended for ‘refractive surgery on complete ophthalmic examination’[12]

    ·     A medical Certificate dated ‘7/7/15’, stating the applicant had inter alia a referral for glaucoma assessment[13]

    [9] Department – folio 20; and Tribunal – folio 31. .

    [10] Department – folio 14.

    [11] Tribunal – folio 44.

    [12] Tribunal – folio 36 (reverse side).

    [13] Tribunal – folio 34.

21. The applicant had also requested his course load in Australia, be reduced to 2 subjects instead of the load normally required by his education provider for full time studies, but that request had been refused. The applicant then said he had attempted to gain admission at another College/University but had not been successful. The applicant then said he had no choice but to enrol in a Certificate IV in Business Management[14] to allow him to recover and this would lead to ‘a degree status’ (in Bachelor of Accounting). He said he would be commencing his Bachelor course upon completion of his Diploma of Leadership at Group Colleges Australia.[15] However, and as noted by the delegate, at the time the NOICC was issued the applicant had not been enrolled in a registered course of study for some 17 months.

    [14] Department – folio 18; Tribunal – folio 30.

    [15] Department – folio 15.

22. By migration agent submission of 25/05/2019,[16] it was claimed the applicant takes post-operation medication and wears glasses. He also experienced “some discomfort during the first days following the surgery”. Further that in the first few months after arriving in Australia he experienced “halos, glare and starbursts in lowlight environments especially at night, dry eye symptoms, hazy vision, and reduce sharpness of vision. These problems continued for a significant period”. The agent also said the applicant had been admitted to Westmead Hospital on 15 May 2015 and was diagnosed with a corneal ulcer. He was advised to reduce his study hours by his doctor. He had also been advised to “avoid heavy reading or writing schedules and reduce the number of subjects per semester”. However, even though the applicant presented this evidence to his education provider his request was not approved. He was then in a “difficult situation of struggling to keep up with the ongoing course load and painful eye condition”. The applicant continued to study but “was unable to pass all subjects”.

    [16] Tribunal – from folio 34 (reverse side).

23. The agent then said the applicant also attempted to enrol with another education provider which would allow him to reduce his study load, “but all his efforts went in vain”. It was then the applicant “opted to pursue lesser qualifications instead”. Therefore, the applicant enrolled in a “Certificate IV Business in Group Colleges Australia”, and this course started in November 2015. It was claimed the applicant completed this course and then enrolled in a Diploma of Leadership and Management from Group Colleges Australia which was due to commence in April 2016 and to be completed by June 2017. It was on 6 April 2017 that the applicant was advised of the intention to consider cancelling his Student visa. The applicant then completed the Diploma of Leadership and Management at Group Colleges Australia.

24. The applicant then had attempted to enrol in a Bachelor of Professional Accounting. Due to being granted a BVE, the applicant “failed to get the COE for the Bachelor in Professional Accounting”. The applicant then commenced an Advanced Diploma of Leadership and Management in March 2018 and completed the course in 2019. With the Tribunal, and amongst other things, the applicant lodged:

    ·     A COE for an Advanced Diploma of Leadership and Management for Group Colleges Australia – course start date 11/04/2016 & end date 16/06/2017[17]

    and

    ·     Advanced Diploma of Leadership and Management from Australian Education & Learning Institute (AELI), dated 4 March 2019[18]

    ·     A letter from AELI dated 4 March 2019 confirming same – and advising the course start date was 1 March 2018 & the end date was 4 March 2019[19]

    ·     Record of results (from 2017) for a Diploma course (12 subjects, result of ‘competent’[20])

    [17] Tribunal – folio 35 (reverse side).

    [18] Tribunal – folio 37 (reverse side).

    [19] Tribunal – folio 35.

    [20] Tribunal – folio 36.

25. As noted by the delegate, the doctor’s report (from 2015) did not provide a timeframe within which the applicant was advised to pursue a reduced study load and further, the report was issued more than 17 months prior to the NOICC. 

26. When discussed at hearing the applicant repeated that he had sought to be allowed to reduce his study workload (from around 2015). Contrary to the agent’s submissions, he conceded that the College eventually did allow him to undertake a reduced study load for one semester only. However, given the applicant had failed to maintain enrolment in a registered course for some 17 months at the time the NOICC was issued, and given his COE in all his bachelor courses since arriving in Australia had been cancelled (6 – though some were cancelled after the NOICC was issued), when asked why he did not return to Pakistan (where he could recover and where the cost of his medical and other care would be cheaper), he said he was distressed by his situation.

27. However, the applicant also conceded he had not seen (ie) a psychologist or psychiatrist about his claimed situation in Australia (though he had consulted other doctors in Australia – he may also have spoken to a course counsellor in order to reduce his study load), and his brother continued to pay for his upkeep in Australia. After considering all the evidence, the Tribunal does not accept it is plausible that the applicant, who had the ongoing support of his family, would have continued to reside in Australia, to engage in occasional work, to study at the vocational level, and yet fail to maintain enrolment in a course appropriate to his Higher Education Student visa, if he was a genuine Higher Education level student. The applicant did not dispute the Tribunal’s comment that Student visa holders are made aware of the ongoing obligations attached to a Student visa at time of grant. This is one reason that has satisfied the Tribunal the applicant is not now a genuine Higher Education level student in Australia.

28. Next, at hearing the Tribunal noted that in its experience, non-citizens may be granted COEs in bachelor degrees in Australia, even after their Student visa is cancelled. The applicant said that he had tried on two occasions to obtain a COE for a bachelors degree - sometime in mid-2017 (on both occasions without migration or education agent assistance). On both occasions, this request was declined. The applicant conceded he had commenced and qualified for the Advanced Diploma in Leadership and Management after his Student visa was cancelled. That being said, and as stated at hearing, in the Tribunal’s experience many non-citizens are able to obtain a COE in bachelor degrees after their Student visa is cancelled. If they are genuine students, they may also engage in a pathway of courses, which may lead to a bachelor’s degree for which they had been given a COE, in an effort to substantiate the claim to be a genuine student. However, when discussed at hearing, the applicant said he (words to the effect) hoped to undertake a bachelors degree after he completed his Advanced Diploma. After then considering all the evidence, the Tribunal is not satisfied the applicant’s academic progress in vocational courses, or his failure to maintain enrolment for a substantial period in an appropriate course, support the conclusion that he is now a genuine student in Australia at the Higher Education visa level.

1. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Based on the accepted evidence herein, the Tribunal does not accept the applicant has a compelling need to travel to or remain in Australia.

2. Next, if the applicant’s Student 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.

3. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he 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 (being three years from 18 April 2017).   

4. Next, by migration agent submission of 25/05/2019,[21] it was claimed the applicant’s “circumstances in Pakistan are favourable as there is no political unrest, all his family members are well settled in Pakistan and Abu Dhabi [UAE] with sound economic situation”. In the circumstances, and after considering same, the Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

   [21] Tribunal – from folio 34 (reverse side).

5. After then considering all the accepted evidence, the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s Student visa.

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

   DECISION

7. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Mr S Norman
   Member