HASSAN (Migration)

[2020] AATA 3547

HASSAN (Migration) [2020] AATA 3547 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gulam Gose HASSAN

CASE NUMBER:  1818670

HOME AFFAIRS REFERENCE(S):          BCC2018/870826

MEMBER:L. Symons

DATE:24 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 June 2020 at 1:05pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8202–had not been enrolled in a registered course of study – financially support family members –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 June 2018 made by a delegate of the Minister for Home Affairs 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 from 17 July 2017 to 3 June 2018. He applied to the Tribunal for a review of that decision on 26 June 2018.

3. The applicant appeared before the Tribunal on 15 January 2020 to give evidence and present arguments.

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 AND FINDINGS

5. 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 breach Condition 8202?

6. 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).

7. In the present case, the applicant was granted a Student visa on 9 February 2015. This visa was subject to a number of conditions including condition 8202. On 4 June 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had breached condition 8202(2)(a) as he had not been enrolled in a registered course of study since 17 July 2017.

8. The applicant was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. In his response dated 9 June 2018, he provided details as to why he was unable to maintain enrolment in a registered course of study and comply with condition 8202(2)(a). The delegate cancelled his Student visa on 25 June 2018.

9. The applicant provided the Tribunal with a copy of the Decision Record of the Department of Immigration (the Department) dated 25 June 2018. He also lodged with the Tribunal copies of medical records for his stepmother (Farah Zulfiqar (Sultana)), documents from Capital University of Science & Technology in relation to his wife, a Death Certificate for his mother (Kusar Bibi), his Marriage Certificate, his child’s Birth Certificate and his father’s passport.

10. During the hearing, the applicant gave evidence that he understood that if he was not enrolled in a registered course of study he would breach condition 8202 of his Student visa. He conceded that he was not enrolled in a registered course of study from 17 July 2017 to 3 June 2018 and had breached condition 8202 of his Student visa.

11. The records of the Department of Education indicate that the applicant enrolled in an Advanced Diploma of Business from 31 January 2017 to 16 July 2017 which he completed. On 4 June 2018, the Department sent him a NOICC. He then enrolled in an Advanced Diploma of Marketing and Communication from 4 June 2018 to 2 June 2019. The Tribunal put this information to him, pursuant to s,359AA of the Act, and noted that it may find that as he was not enrolled in a registered course of study  from 17 July 2017 to 3 June 2018, he had breached condition 8202(2) of his Student visa. He responded that he has explained his circumstances as to why he could not comply with the visa conditions.

12. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study between 17 July 2017 and 3 June 2018 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

14. The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to study, get an education, be successful and live a better life for the next generation. He stated that he wanted the next generation to be successful, educated and broad minded.

15. The Tribunal asked the applicant why he had not completed any degrees in Australia. He responded that he asked his uncle to help him to get a visa for Australia and his uncle found a consultant. He stated that his father lent him half the money and his uncle lent him the other half and he paid the money to the consultant. He stated that he was initially enrolled with an education provider in Melbourne but did not know anyone there. He stated that he moved to Sydney with a friend and commenced a course in Sydney. He stated that he then found out that his consultant had not paid his fees. He stated that he contacted his uncle, but his uncle was unable to help him. He stated that he had to change his course from a degree to a diploma. He stated that after that things got progressively worse.

16. The Tribunal asked the applicant whether he was aware that he could not do that when he was the holder of a subclass 573 Student visa. He responded that he did but had no other option. When asked why he did not return to his family in Pakistan if he came to Australia to get a degree and was unable to do that, he responded that he returned to Pakistan in 2015 after 3 years in Australia. He stated that he was having a really hard time and spoke to his father and uncle, but they questioned what they could do about it and stated that it was his life. He stated that they said if he returned to Pakistan he was on his own. He stated that he gave them money for medicine. He questioned what he could have done in Pakistan. He stated that he had 13 years of education in Pakistan on the basis of a sports scholarship. He stated that there is corruption in Pakistan and no respect.

17. The Tribunal asked the applicant why he did not apply for a subclass 572 Student visa when he applied for a new visa (in 2015). He responded that he provided the Department with a Confirmation of Enrolment (COE) for an Advanced Diploma followed by a Bachelor’s degree and was granted a Student visa for 5 years.

18. The records of the Department indicate that the applicant was granted a subclass 573 Student visa on 18 October 2012 which was valid until 7 January 2015. He was then granted another subclass 573 Student visa on 9 February 2015 which was cancelled on 25 June 2018 for non-compliance with a visa condition. The records of the Department of Education indicate that the only courses that he has completed in Australia are two short English language courses (completed on 15 March 2013), a Diploma of Information Technology Networking (completed on 9 September 2014) and an Advanced Diploma of Business (completed on 16 July 2017).

19. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that the purpose of the subclass 573 Student visas was so that he could undertake a Bachelor’s degree or a Master degree in Australia. The Tribunal noted that he has been in Australia since 2012 and has not completed a single Bachelor degree or Master degree. The Tribunal noted that it may find that he has not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled. He declined to respond.

20. The evidence before the Tribunal indicates that the applicant has a poor history as a student in Australia. Whilst he has completed two Diploma level courses, he has not completed any higher education courses for which he was granted the subclass 573 Student visas. There is no evidence before the Tribunal to indicate that he is currently enrolled in a registered course of study. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in his favour.   

    The extent of compliance with visa conditions

21. The applicant was not enrolled in a registered course of study between 17 July 2017 and 3 June 2018. This was a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa.

22. The Tribunal asked the applicant what his intentions were if he had not been issued with the NOITCC. He responded that his plan was to get enrolled in a course and get back to his studies. He stated that whenever he planned something, something else came up. He stated that his family give him “a bundle of stress”. He stated that he was supporting three families. He stated that they were aware of his visa conditions and that he was not allowed to work here. He stated that he has been “blackmailed”. He stated that he did not want his siblings to face the life he faced. He stated that that kept him here and he was learning things in Australia that he never knew. He stated that he did not know about prawns and broccoli.

23. The applicant stated that his statement to the Department was the truth. He stated that something always gets in his way. He stated that his expenses are going up and up. He stated that his stepmother has problems with her health. He stated that when his father’s visa for Kuwait expired, he returned to Pakistan. He stated that he helped his brother to go to Saudi Arabia. He stated that his brother spent 2 years in Saudi Arabia and returned to Pakistan when his visa was cancelled. He stated that his third brother was not studying. He stated that he is in Malawi on a visit and is trying to start something there. He stated that he is trying to give them a better life.

24. The applicant stated that his stepmother was initially nice to them. He stated that when he was in Year 9 and Year 10 his father made a lot of money in Kuwait, but he did not receive any financial support for 2 years. He stated that this is what happens when you have no parents. He stated that he and one of his brothers were sexually assaulted as children. He stated that he does not want that kind of life for his siblings. He stated that whenever he tries to do something for himself, his family‘s needs take precedence. He stated that that does not mean that he does not want to study.

25. The applicant stated that he has not breached any other condition of his visas. He stated that he has no criminal convictions and does not use drugs. He stated that he does no owe money. He stated that his housemates left him with an electricity bill for $1,000.00. He stated that the Department gave him “full work rights” in 2018 and he has done things “according to the books”. 

26. The applicant gave evidence that he has worked continuously in Australia since his arrival here in 2012. He stated that he worked part time until 2018 in accordance with visa conditions and commenced full time work in 2018 when granted “full work rights”. This tends to indicate that the subclass 573 Student visa issued to him in 2015 (which is the visa that was cancelled) was subject to condition 8105. Condition 8105(1A) states that the visa holder “must not engage in any work in Australia before the holder's course of study commences”.

27. As the applicant was not enrolled in a registered course of study between 17 July 2017 and 3 June 2018, his course of study did not commence during that period and he was not entitled to work during that period. This tends to indicate that he also breached condition 8105 of his Student visa during that period.

28. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused

29. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that his life would end with nothing. He stated that his wife’s life and his daughter’s life would be ruined. He stated that his parents are both ill. He stated that he has one unmarried sister, two brothers, one stepbrother and one stepsister. He stated that if he returns to Pakistan he would have to “bribe every step of the way” including to get a job.

30. The Tribunal pointed out to the applicant that the purpose of the Student visas was for him to study in Australia and not for him to work here to support his family in Pakistan. He agreed and stated that these circumstances were dumped on him.

31. The Tribunal accepts that if the Student visa is cancelled it would cause the applicant and his family considerable hardship. The Tribunal gives this consideration weight in his favour.   

    Circumstances in which the ground for cancellation arose

32. In his response to the NOITCC, the applicant stated that his failure to be enrolled in a registered course of study was out of character and due to family pressures and depression. He stated that he complied with his other visa conditions during that period. He stated that his parents had been pressuring him to return to Pakistan and get married for some time. He stated that when he returned to Pakistan for a holiday between 4 August 2017 and 21 August 2017 his father informed him that he had arranged a marriage for him and that he was to get married on 8 April 2017. He stated that, despite his feelings, he had no choice but to go ahead with the wedding.

33. The applicant stated in his response to the Department that when he returned to Australia on 21 April 2017 he was depressed and unable to concentrate on his studies. He stated that he was worried about his marriage and how to support his new wife and his siblings. He stated that as a result of these stresses he was unable to complete his Diploma and re-enrol in July 2017. He stated that by October 2017 he decided to return to Pakistan to sort out the issues around his marriage, his family pressures and his education. He stated that he stayed in Pakistan from 6 December 2017 to 1 February 2018. He stated that he got to know his wife during that time and decided to continue his marriage. He stated that he returned to Australia with the issues in relation to family pressure and his education unresolved.

34. The applicant stated in his response to the Department that his mother died when he was 5 years old. He stated that his father worked in Kuwait. He stated that he was brought up by his grandmother and uncle until he was 9 years old. He stated that his father returned to Pakistan in 2000 to get remarried and then went back to Kuwait. He stated that he and his siblings then lived with his father’s family in a village. He stated that his stepmother illtreated them and this impacted on their upbringing and their education and led to exploitation and abuse by villagers. He stated that he completed his High School Certificate in 2007 at the age of 17 years and thereafter studied and worked part time to support his siblings. He stated that it was always emphasised to him that he was responsible to financially support his family. He stated that he managed to convince his father to allow him to study overseas so that he could support his family. He stated that he has been sending part of the income he earned in Australia to support his family in Pakistan.

35. The applicant stated in his response to the Department that when he returned to Australia in February 2018, he found out that his wife was pregnant and their child was due in October 2018. He stated that this added to the pressure he was under and he became more depressed. He stated that his wife was undertaking a Master’s degree and he was concerned to ensure that she could complete it. He stated that, despite the pressures to support his family, he ensured that he only worked the hours that he was allowed under his visa conditions. He stated that these stresses prevented him from re-enrolling in a course and completing his Diploma.

36. The applicant stated in his response to the Department that he has spoken to friends over the last few months and understands the implications of what has happened. He stated that he enrolled in an Advanced Diploma of Marketing and Communications at the Australian Institute of Technology and Education, has commenced the course and wants to complete it. He stated that his wife hopes to apply for a Study visa to undertake a doctorate in Australia once she completes her Master’s degree. He stated that the cancellation of his Student visa would cause hardship for his family when his wife applies for a visa. Despite his assurances, the applicant did not complete the Advanced Diploma of Marketing and Communications.

37. The Tribunal has a great deal of sympathy for the applicant in relation to the difficulties he underwent during his childhood and the responsibilities for his family that were imposed on him.  The Tribunal accepts that he has a desire to give his siblings more opportunities and a better life than he had. The Tribunal also accepts that he has a continuing sense of responsibility to financially support his parents, siblings and his wife and daughter. The Tribunal accepts that this has impacted on his ability to focus on his studies in Australia and to pay for his education in Australia. The Tribunal notes however that he was financially supporting his siblings when he was in Pakistan and came to Australia with the expectation that he would continue to financially support his siblings. This was not an unexpected or unforeseen circumstance that was imposed on him after his arrival in Australia.  

38. The Student visas were granted to the applicant on the basis that he was able to pay for his education and living expenses in Australia. His evidence indicates that his family were unable to financially support his studies and living expenses in Australia and they were and are relying on him to financially support them. His evidence indicates that his Student visas were subject to condition 8105 (not engage in work in Australia for more than 40 hours a fortnight when his course is in session). His evidence is that he worked part time in the construction industry until 2018. The Tribunal has serious doubts that he would have been able to pay the fees associated with undertaking a Bachelor degree or a Master degree as an international student in Australia and for his living expenses in Australia working 20 hours a week whilst also financially supporting his family in Pakistan from his earnings in Australia.

39. The Tribunal therefore has no confidence that the applicant was ever able to pay the costs of undertaking a higher education degree in Australia whilst complying with his visa conditions or that he would be able to do so in the future. Even if the Tribunal accepts that his consultant was given the money to pay for his initial fees when he first arrived in Australia in 2012 and did not do so, he applied for and was granted a further subclass 573 Student visa in 2015 whilst living in Australia, being personally responsible for paying his tuition fees and being required to comply with the conditions of his Student visa. This was the visa that was cancelled due to a breach of condition 8202.

1. The Tribunal gives this consideration little weight in his favour.

   Past and present behaviour of the visa holder towards the Department

2. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.  

3. Whether there would be consequential cancellations under s.140 of the Act

4. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

   Legal consequences of a decision to cancel the visa

5. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

6. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

7. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

   Australia’s international obligations

8. The Tribunal asked the applicant whether there was any reason why he could not return to Pakistan. He responded that there are old rivalries in his village between his father and his uncle. He stated that his father had three brothers and his uncle used to beat the other party. He stated that they went to his house and fired (a weapon). He stated that his uncle told him to go to the city. He stated that his brother completed his studies and moved to the city. He stated that he only has a house in the village. He stated that those relationships were there only when the grandparents were there.     

9. The applicant stated that he did not return to Pakistan for the birth of his daughter and has still not held her even though she is 1 year and 3 months old. He stated that his grandmother died in 2018 and he could not attend her funeral. He stated that she gave him half the money when he came here. He stated that what happened to his mother in 1996 has not happened to his wife or sister. He stated that he has not visited his wife since they got married. This is not consistent with his earlier evidence that he came back to Australia on 21 August 2017 after his wedding on 8 April 2017 and returned to Pakistan between 6 December 2017 and 1 February 2018  to visit his wife and family.

10. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

11. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

12. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.