Iftikhar (Migration)

[2019] AATA 6575

Iftikhar (Migration) [2019] AATA 6575 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Faisal Iftikhar

CASE NUMBER:  1806859

HOME AFFAIRS REFERENCE(S):          BCC2017/4259932

MEMBER:L. Symons

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2019 at 3:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – significant period of non-enrolment – mental health, death in family, physical injury – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 March 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 since 5 June 2017 in breach of condition 8202(2). On 14 March 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Shahid Nadeem, who attended the hearing.

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 AND FINDINGS

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 breach 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 was granted a Student visa on 27 March 2015. This visa was subject to a number of conditions including condition 8202. On 19 January 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He 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.

9. In his response dated 7 February 2018, the applicant provided details as to why he was unable to maintain enrolment in a registered course and comply with condition 8202(2)(a). He also provided to the Department of Immigration (the Department) copies of his flight tickets to Thailand and Medical Certificates. The delegate cancelled his Student visa on 8 March 2018 on the basis that he was not enrolled in a registered course since 5 June 2017.

10. The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 8 March 2018. He also filed an Offer and Acceptance of Enrolment from Group Colleges Australia, A Statement of Results from Australis Institute of Technology and Education, a Diploma of Accounting and a Confirmation of Enrolment (COE) for a Bachelor of Accounting. Following the hearing, he provided the Tribunal with Medical Certificates dated 15 April 2017, 26 April 2014 and 6 May 2017.

11. The Tribunal received written submissions dated 26 November 2019 from the applicant’s migration agent which it has considered.

12. During the hearing, the applicant gave evidence that he understood that if he was not enrolled in a registered course he would breach condition 8202 of his Student visa. He conceded that he had breached condition 8202 of his Student visa.

13. The records of the Department of Education indicate that the applicant enrolled in a Bachelor of Accounting degree from 8 May 2017 to 1 May 2020. His enrolment in that course was cancelled on 5 June 2017 for non-commencement of studies. He has not been enrolled in a registered course since then. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had breached condition 8202(2) of his Student visa. He responded that the information was correct.

14. On the evidence before it, the Tribunal finds that the applicant has not been enrolled in a registered course since 5 June 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

15. 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?

16. The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to study. When asked why he did not return to Pakistan if he was not studying and had problems with his visa, he responded that he wanted to complete his studies.

17. The applicant gave evidence that he has not enrolled in a registered course since 5 June 2017. He stated that after he hurt his hand he decided to enrol in another course. He stated that he did not contact his education provider. He stated that after he received the NOITCC his education agent advised him to tell the Department why he had not enrolled in a registered course previously. He stated that he provided evidence to the Department. He stated that he asked his education agent what he should do next and was told that his education agent would contact the universities. He stated that his education agent told him that every education provider had conditions he had to fulfil.

18. The applicant stated that he decided to leave everything and wait for the outcome of his application for review to the Tribunal. He stated that his education agent told him that he could get an Offer of Enrolment and later obtain a COE. He stated that he has obtained an Offer of Enrolment from the same education provider. When asked what he has been doing since 8 March 2018, he responded nothing. He stated that he contacted his education agent and was told that he could only get an Offer of Enrolment. He stated that the last time he studied was in 2017.

19. The applicant has provided the Tribunal with an Offer and Acceptance of Enrolment from Group Colleges Australia for a Bachelor of Accounting degree from 20 January 2020 to 3 December 2020.

20. The applicant’s migration agent submitted that it is difficult for students to enrol at University if they do not have a good immigration history. He stated that it is a requirement for Universities to check prospective students’ immigration history. When the Tribunal pointed out that Colleges are not as strict, he responded that maybe his education agent did not advise him that he could attend a College.

21. The Tribunal is of the view that not being enrolled in a registered course since 5 June 2017 is a significant period of time. The Tribunal is also of the view that if he has not studied since 30 April 2017, when he completed a Diploma of Accounting, that is a considerable period of time during which he has not fulfilled the purpose of his travel to and stay in Australia. Whilst the Tribunal notes that he has an Offer of Enrolment for 2020, the Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration little weight in his favour.   

    The extent of compliance with visa conditions

22. The applicant has not been enrolled in a registered course since 5 June 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal is not convinced that he has provided a satisfactory explanation for why he was not enrolled in a registered course during this period. (See below)

23. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused

24. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that he wants to complete his studies in Australia as soon as possible. He stated that it is his parents’ dream. He stated that he has not seen his parents for three years because of problems with his Bridging visa. The Tribunal gives this consideration some weight in his favour.   

    Circumstances in which the ground for cancellation arose

25. In his response to the NOITCC, the applicant stated that he was homesick, anxious and depressed while studying in Australia. He stated that his grandmother passed away in February 2017 in Pakistan and this increased his depression. He stated that he returned to Pakistan for two months. He stated that whilst there he was involved in an incident and injured his right hand. He stated that he had to get 18 stitches. He stated that his return flight was on 1 May 2017 but he delayed it to 10 May 2017 as he had a doctor’s appointment on 6 May 2017. He stated that his doctor advised him not to undertake activities that would affect his hand. He stated that he returned to Australia because of his visa issue. He stated that he stayed in bed for a long while and his housemates paid his rent and utility bills during that period as it was hard for him to continue his studies. He stated that he is feeling better now and requested a chance to pursue his studies.

26. During the hearing, the applicant gave evidence that he returned to Pakistan in 2017 to attend his uncle’s wedding. He stated that he did not return to Pakistan for any other reason. He provided the Tribunal with Medical Certificates dated 15 April 2017, 26 April 2014 and 6 May 2017 which he stated he had provided to the Department in response to the NOITCC. The first Medical Certificate indicates that he presented to the Emergency Department of the Al Mustafa Trust on 15 April 2017 with an injury to his right hand. It indicates that he received 18 stitches under a local anaesthetic. The second Medical Certificate indicates that he had a consultation with the surgeon on 26 April 2017. It indicates that the area was tender, swollen and had a “dirty infected wound”. It indicates that an incision and drainage was done under a local anaesthetic and the wound was packed. It indicates that he was advised to rest for at least two weeks, avoid work and travelling and keep his arm in a sling.

27. The third Medical Certificate indicates that the applicant’s stitches were removed under a local anaesthetic and his wound was packed. He was advised to have daily dressings for 10 days, he was prescribed medication for 10 days, advised to rest for at least four weeks and avoid work and travelling. He was also advised to have physiotherapy for his hand for at least two months.

28. The applicant has provided to the Tribunal a copy of his COE for a Bachelor of Accounting degree from 8 May 2017 to 1 May 2020. As he returned to Australia on 10 May 2017, he may have missed the first week of classes for this course. He was aware that his course commenced on 8 May 2017. It is not clear to the Tribunal why he obtained the Medical Certificates from his doctor in Pakistan and then did not provide them to his education provider in Australia and seek a deferment of his studies if necessary. He was also aware of his obligations to comply with the conditions of his Student visa and that was the reason he gave for returning to Australia. It is not clear to the Tribunal why he did not provide copies of these Medical Certificates to the Department and explain why he was unable to comply with the conditions of his Student visa at that time. He had an education agent from whom he could have sought advice.

29. The applicant has not indicated that he was seeking treatment from a doctor, physiotherapist or psychologist in Australia at that time. He has not provided the Tribunal with any evidence in relation to his mental health at that time. His evidence is that when he returned to Australia he stayed in bed ”for a long time” and that his housemates paid his rent and utility bills. The Tribunal is of the view that they must have been good friends to do so. It is not clear to the Tribunal why he did not arrange for his housemates to contact his education provider and the Department on his behalf if he was unable to do so. When asked what he thought would happen if he did not contact his education provider and the Department and explain why he was unable to attend classes, he responded that he had already paid his fees and thought he could enrolled in the following semester commencing 20 January 2018. He stated that he receive the NOITCC in January 2018.

30. The Tribunal is sympathetic towards the applicant in relation to the injury he suffered in Pakistan and the impact that it had on his studies in Australia. However, he had obligations to his education provider in relation to his enrolment and to the Department in relation to his Student visa and he did not fulfil those obligations. The Tribunal does not give this consideration any weight in his favour.

    Past and present behaviour of the applicant towards the Department

31. 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.  

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

32. 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

33. 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.

34. 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.

35. 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

36. The Tribunal asked the applicant whether there was any reason why he could not return to Pakistan. He responded that there was no reason.

37. 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

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

    CONCLUSION

39. 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

40. 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.