Hussain (Migration)

[2020] AATA 1844

Hussain (Migration) [2020] AATA 1844 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hussain

CASE NUMBER:  1920438

HOME AFFAIRS REFERENCE(S):          BCC2019/1473074

MEMBER:Donna Petrovich

DATE:10 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2020 at 11:34am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolled in a full time registered course ceased – limited academic progress – applicant sought change to vocational course – financial hardship – maintaining residence in Australia for employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 failed to maintain enrolment in a full time registered course of study from 27 February 2018 until 30 May 2019, which led to his non-compliance with visa condition 8202. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   The applicant appeared before the Tribunal on 2 March 2019 to give evidence and present arguments.

   The applicant was not represented in relation to the review by his registered migration agent.

3. 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

4. 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?

5. 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

7. The applicant was granted a Visa on 7 October 2016 and he commenced study and enrolled in a Diploma of Engineering which he studied for two semesters and was successful in passing and completing only 2 subjects of those undertaken.  He failed to re-enrol, and remained un-enrolled from the 27 February 2018 until 30 May 2019, for a period of 15 months.  The applicant failed to respond to NOICC, he did not provide a response and did not dispute that there were grounds for cancellation. The applicant told the Tribunal that he made enquiries about another enrolment with the course co-ordinator but did not follow the process that were recommended and so remained unenrolled. The applicant told the Tribunal that he was depressed and had isolated himself, he explained when asked if he was in receipt of treatment for his mental health issues, he told the tribunal that he was having some treatment on line with a Pakistani Doctor/Psychologist based in Dubai, who was counselling him.  The applicant told the Tribunal that he had no reports that could confirm his treatment or condition, or if the psychologist was qualified to practice. The applicant submitted and he thought that the doctor was treating him for an adjustment disorder.  The applicant provided that Tribunal with a current COE for a Certificate IV in Commercial Cookery, which he was due to start on 19 February 2020.  The applicant told the Tribunal that the email must have gone to his spam file and so he had not started this course at the time of the hearing.  On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

8. 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 Procedural Instruction ‘General visa cancellation powers’.

   The purpose of the Visa Holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia

9. The applicant told the Tribunal that his purpose of travel and stay in Australia was to study and he enrolled initially in a Diploma of Engineering.  He told the Tribunal that he completed 2 semesters and in the first semester passed 1 subject out of the four studied. In the second semester he did not pass any subject undertaken university, he was looking to change universities.  The Tribunal, in considering the applicant’s need to travel or remain in Australia finds that if the applicant has not pursued the opportunity provided to study and has only recently re-enrolled in Certificate IV in Commercial Cookery, but has not started studying at the commencement  date  as of the 19 February 2020 of this course; and has already missed two weeks of at the time of hearing. The Tribunal is concerned that the applicant has sought enrolment to coincide with this hearing and does not genuinely intend to study, as the applicant has made no attempt to study since his visa was cancelled on the 30 May 2019.  Therefore, there seems to be no compelling need or requirement to travel or remain in Australia. The Tribunal in considering this does not accept that the applicant has maintained his original commitment to study in Australia. Therefore, the Tribunal places little weight on the applicant’s statement that his purpose of travelling and staying in Australia was to study.

   The extent of Compliance with Visa Conditions

10. The applicant has not complied with the requirement of his visa conditions which requires that the applicant maintain his enrolment in a registered course of study he has not been enrolled in a course of study since the 30 May 2019 and whilst he has provided the Tribunal with a current CEO he has not commenced this study on the due date, and not sought confirmation of his schedule. The applicant remained un-enrolled for 15 months which led to his visa being cancelled.

11. The applicant has chosen to remain in Australia without having complied with his visa conditions.  As such the applicant’s non-compliance is significant, and therefore, the Tribunal places little weight in considering this fact.

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

12. The applicant’s mother, father, 3 brothers and extended family live in Pakistan, and he has a cousin who lives close by who he has a good relationship with. His father is retired and his mother is a housewife, his 3 brothers are in real estate. The applicant also told the Tribunal that he had become engaged as part of an arranged engagement since being in Australia and that his fiancé remains in Pakistan and that the engagement was conducted via the telephone. He told the Tribunal that this has also caused him stress, but he did not elaborate on this issue further. The applicant did not raise any specific matters around hardship at the hearing in relation to his family or his fiance’. The applicant is already working in hospitality and has received significant experience during the last two years which would enable him to work in this area. The Tribunal does not accept that the applicant would face significant hardship in this circumstance as he has the support of his family, and his fiancé.  As such the Tribunal places no weight on this consideration in the applicants favour.

13. The applicant told the Tribunal that if he is able to complete his Certificate IV in Cooking, that he could gain experience in Australia where a Chef is very well paid. In comparison to the wages in Pakistan were a Chef can expect to earn $400 per month AUD, and in Australia can be paid 10 times that amount.

14. The applicant told the Tribunal that he has been working in two kebab shops in Melbourne and doing food preparation and customer service, generally 40 hours per fortnight, but up to sometimes full time depending and sometimes 6 days per week.  He has been working at two kebab shops each week over the last two years. The applicant told the Tribunal he is paid around $14 per hour for this work.  The Tribunal in considering this expects that the applicant will suffer some financial hardship if his visa is cancelled, but places no weight in this regard as the conditions of his visa were for him to maintain his enrolment in a course of study, which he has not done.

15. The applicant said he wanted to Study Cooking so that he could gain experience in Melbourne as a Chef and then go home to work in a restaurant, cooking Pakistani food. He told the Tribunal that people always need food.

16. The applicant provided the Tribunal with a CEO for Certificate IV in Commercial Cookery. While the Tribunal accepts that if the applicant’s visa is cancelled that he will suffer some hardship by having to return to Pakistan.  The Tribunal does not accept the applicant’s evidence about returning to study to complete a Certificate IV in Cooking based on his previous academic performance, and his failure to commence studies for this course which started on the 19 February 2020, and also the timing of the applicant acquiring this COE, which seems to coincides with his appearance at the Tribunal Hearing.  As such the Tribunal places little weight on the hardship the applicant will face in this regard.   

17. The applicant told the Tribunal that he suffered depression and felt that he would get better if he stayed in Australia.  He also told the Tribunal that he could not cope or ask for help and that is why he breached his visa conditions. He told the Tribunal that he was being given counselling on line, by a psychologist based in Dubai, he was unsure of his qualification, and told the Tribunal that he had some treatment last September/October, and had 1 hours treatment last week.  He submitted to the Tribunal that he thought this was treatment for adjustment disorder. The Tribunal can give no weight in regard to hardship as there is no material to support the applicant’s claim of his illness, diagnosis or treatment.

18. The Tribunal accepts that the applicant may be suffering from depression, but does not accept that it prevented him from making arrangements with the department so that he was not in breach of his visa conditions or contacting the college, deferring his studies of notifying the Department of his difficulties.  The applicant did not provide evidence that this education provider was aware of his medical condition, or that he was having difficulties and would be unable to continue to study as a result of his mental health issues. Although the Tribunal accepts that the applicant may have experienced hardship in this regard, is unable to place any weight in this regard as there is no evidence to support applicant’s claims.

19. The applicant did not provide any medical reports in relation to his mental health issues, or provide evidence of his treatment or the qualifications or identity of his treating doctor. Although the Tribunal accepts that some hardship may have been experienced by the applicant, it is unable to place any weight in this regard as there were no medical reports submitted to support the applicant’s submission at the hearing. Therefore, the Tribunal gives no weight in favour of the applicant in this regard.

    Circumstances in which the ground for cancellation arose

20. The applicant told the Tribunal that he could not continue to study because he found the course too difficult and became stressed and could not face up to this.  He completed two semesters and did not pass any subjects in his second semester.  He told the Tribunal that he did not want to study and did not like the course because it was too hard, although the university was a good place to study. He tried to speak to a student counsellor who advised him, but he did not go through with the process that they advised him. He did not defer, he did not contact the Department.  He told the Tribunal he did not do anything.

21. The Tribunal accepts that the applicant may experience some depression under these circumstances, it does not accept that it would have prevented him from attending college to seek assistance with a deferral or at least making alternative arrangements with the department to avoid being in breach of his visa conditions. There was no medical evidence provided by the applicant in relation to his mental health issues. The Tribunal places little weight in this regard.

22. Therefore, based on the evidence before the Tribunal the applicant has not been enrolled in a registered course from 27 February 2018 until 30 May 2019 when his visa was cancelled. As such he has not complied with paragraph 8202(2 (a) of condition 8202.

23. In addition the applicant has provided a COE for Certificate IV in Commercial Cookery which he has not commenced and is now 2 weeks behind at time of hearing. The Tribunal remains unconvinced that the applicant has any intention of studying, but is more inclined to think that the applicant is using this COE as a means of remaining in Australia and continuing to work as he has for the last two and a half years. The Tribunal give no weight in favour of the applicant in this regard.              

    Whether there are mandatory legal consequences

24. The applicant told the Tribunal that there were no mandatory legal consequences.

    Whether there would be consequential cancellations under s.140

25. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be cancelled under s.140 of the Migration Act 1958 (“the Act”). According to the Departments records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

26. Accordingly the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled

27. The circumstances of this case are such that they would not engage Australia’s international obligations and therefor the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

28. The applicant was advised on the 19 August 2019 by the Administrative Appeals Tribunal and invited to attend a hearing on 16 September 2019 the applicant failed to attend the hearing and was marked as a non- appearance, dismissing the invitation.

29. On 25 September a newly appointed Representative requested a reinstatement which was accepted by the member on 24 September 2019, however, a non-appearance migration (part 5) Interim decision was not generated.

30. The Tribunal emailed the representative on 28 October 2019 with a new hearing invitation letter for the hearing to be held on 19 November 2019. This hearing invitation letters are to be disregarded as a non- appearance Migration (part 5) Interim decision was never generated.

31. The applicant failed to attend the scheduled hearing on 19 November 2019 and the Tribunal emailed the representative a Non-Appearance Decision and letter on 20 November 2019 dismissing the application.  The representative did not respond to the hearing invitation or submit a request for reinstatement.

32. To rectify the issue the member generated a Reinstatement-non-appearance – Migration (Part 5) Interim decision and scheduled a hearing for 15 January 2020.  On 10 December 2019, the Tribunal emailed the representative a hearing invitation dated 10 December 2019 inviting the applicant to a hearing on 15 January 2020, and a Reinstatement-non-appearance – Migration (Part 5) Interim decision dated 9 December 2019.

33. The hearing was unable to proceed on the 15 January, as the Member was unavailable and the hearing was postponed. The applicant’s agent contacted the Tribunal to notify them that he no longer acted for the applicant on 14 January 2020. 

34. The applicant was then invited to attend a hearing on 2 March 2020, which he attended.  The applicant told the Tribunal received the previous invitations but not attended.  The Tribunal notes that procedural fairness has been provided to the applicant and that he was notified correctly as per the number provided by the applicant and the applicant’s former migration agent, but chose not to not attend the hearings made available to him. It should also be noted that he did not notify the Tribunal of his inability to attend, or contact the Tribunal after his failure to appear. The Tribunal makes no findings nor places any weight in this regard.

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

    DECISION

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

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.