Imdad Ullah (Migration)

[2019] AATA 5447

Imdad Ullah (Migration) [2019] AATA 5447 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Malik Imdad Ullah

CASE NUMBER:  1924293

HOME AFFAIRS REFERENCE(S):          BCC2019/1473988

MEMBER:Peter Booth

DATE:26 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2019 at 1:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – depression – capacity to maintain enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 August 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 was not currently enrolled in a registered course of study. 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 25 November 2019 to give evidence and present arguments.

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?

   ·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).

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

8. The delegate found that the applicant was not enrolled in a registered course of study during the period 20 March 2018 to 10 July 2019. At the hearing the applicant confirmed the correctness of this funding. On the evidence before the Tribunal, 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

9. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters as follows.

    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

11. The applicant gave evidence that he arrived in Australia on 23 March 2018 as the holder of a “student visa”, he did not know which type, with the intention of studying “accounting”. This was later clarified to be a Master’s degree in accounting. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that he had not been enrolled in a registered course of study during the period 20 March 2018 to 10 July 2019.

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

13. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

14. The applicant said that he did not start the course because it had “commenced before my arrival”. He said that he landed in Sydney but that his course had commenced in Adelaide on 1 March 2018. Therefore the course had started approximately 22 days prior to his arrival in Australia. In answer to a question from the Tribunal he said that he did not attend any classes: “I was issued visa late, and when I went to uni it was commenced and I joined in second semester”. He added, “I was told by them you are already late and I must go into the next semester”. He said that he arrived in Adelaide on 26 March 2018. The Tribunal enquired why he did not start the course late to which he said, “I was involved in a case, I was involved in a relationship and that what was why I could not start studies. A domestic violence case”. He went on to say, “I return to Sydney on 29 March 2018. I met a girl, Jenna Park. I started a relationship in Sydney. I was involved in domestic violence case. Because of that case I got depressed, my mum is heart patient, I did not tell her, I was depressed”. It appears from documents that Mr Ullah had provided to the Tribunal that proceedings have been brought against him by Ms Park. The Tribunal was assisted by the migration agent in this regard who informed the Tribunal that the police had obtained an interim apprehended violence order (AVO) against the applicant in October 2018. However on 1 October 2019 the application was withdrawn and dismissed. The Tribunal was also provided with a copy of a report from Mr Stephen Sutton, a psychologist, dated 9 September 2019. This report rehearses in much more detail that which the applicant had somewhat vaguely alluded to in the oral evidence. The Tribunal notes that the report does not conclude that the applicant is unable or was unable at the relevant time to attend classes and study. The applicant’s migration agent confirmed the Tribunal’s comment in that regard and added that the report was prepared for the purposes of the criminal proceeding and not for these proceedings.

15. The applicant said, in answer to a question from the Tribunal, that the period of his relationship with Ms Park was approximately from April 2018 to August 2019. In answer to a question from the Tribunal the applicant said that notwithstanding the AVO he had contact with Ms Park during that period and in fact they were living together. This apparently changed when there was a breach of the AVO and the police were involved resolving an altercation between the applicant and Ms Park on 2 July 2019. The Tribunal was provided with a variety of police reports in respect of that incident. This apparent contradiction of cohabitation whilst there was an operative AVO was clarified by the migration agent who said that it was not a term of the AVO that the applicant and Ms Park could not cohabit.

16. The Tribunal enquired why, if the applicant and Ms Park were cohabiting, the applicant had not enrolled in a course of registered study during the relevant period. In answer to this he said, “I got admission in diploma in college and continued but the visa was cancelled and I was not allowed to continue”. In answer to a question from the Tribunal the applicant said the course was a “diploma of business administration” which he commenced in July 2018. This statement is inconsistent with the finding of the delegate, namely that the applicant was not enrolled in a registered course of study during the period 20 March 2018 to 10 July 2019. This inconsistency was drawn to the applicant’s attention but he gave no meaningful response.

17. The Tribunal enquired when the applicant had gone to see Mr Sutton, the psychologist, to which he said “two or three weeks before”. The applicant was invited to reconsider this uninformative answer to which he said, “I saw him on 24 July 2019”. In answer to a further question he said that he had seen Mr Sutton on three occasions. He did not elaborate.

18. The applicant said that he was currently enrolled in a registered course of study and nominated the course to be “master of accounting”. The Tribunal enquired of the applicant’s migration agent whether the applicant was relying on a letter of offer from Gruber College Australia dated 21 November 2019. The applicant’s migration affirmed that his client was relying on that letter of offer. The Tribunal pointed out that the description of the course in the enrolment offer was “master of business administration”. This was confirmed to be correct by the applicant. The Tribunal enquired whether the letter of offer had been accepted by the applicant to which he responded “no”. The Tribunal enquired why the applicant had decided to enrol in this course of study four days prior to the hearing. He said, “because I’m feeling better now” and added that “my dad is supporting me”. The applicant declined an opportunity to add anything further to his application.

19. The applicant’s migration agent was invited to make any submissions at this point. He commenced reading from a document. The Tribunal enquired as to the nature of the document. The migration agent said it was his client’s statement. This was clarified as being a signed statement of fact from the applicant. The Tribunal observed that this document was not on the Tribunal file to which the migration agent said it had been provided to Tribunal staff at the commencement of the hearing. The Tribunal requested that the document be provided to the Tribunal by close of business on 25 November 2019. The migration agent was invited to make any relevant submissions rather than read from his client’s statement. The applicant’s migration agent said that the circumstances in which his client’s enrolment had not been maintained were because there were “two separate serious charges by his girlfriend”. He added that this took “a whole year to go to court but finally charges were dropped”. He added that his client had “developed depression” and referred to the report of Mr Sutton. He confirmed that Mr Sutton did not say that the applicant was unable to study. The applicant declined an opportunity to add anything to his application once more.

20. The statement of the applicant to which the migration agent referred is dated 25 November 2019 and is in the following terms:

    1.I came to Australia on 23 March 2018 to study Masters in Accounting in Adelaide University.

    2.I arrived in Sydney with intention to move to Adelaide before my semester started. On 26 March 2018, I attended Adelaide University office to enrol myself. I was advised that my semester has already started and I am not able to attend. I was advised that come back at the end of the semester in September 2018 to enrol in the next semester.

    3.I moved back to Sydney because I have few friends in Sydney. In April 2018, I meet Jenna Park in Sydney. We become friends and entered into relationship.

    4.In July 2018, I got admission in the YES College Sydney to study Diploma in Business with intention to prepare myself for the Masters study in September in Adelaide University.

    5.In the first semester of this Diploma my visa was cancelled by the Department of Immigration. I lodged review in the Migration Review Tribunal.

    6.I was in a Defacto relationship with Jenna Park and start living together.

    7.In or about August 2018 my relationship with Jenna deteriorated. She stopped me moving to Adelaide when I said to her the I have to go for my study she become furious and called Police. In October 2018 Jenna Park obtained AVO against me.

    8.The deterioration of my relationship with her was so painful that I developed serious depression. I could not go back to Adelaide to commence my study.

    9.Two months later she approached me for reconciliation. She promised to withdraw AVO provided I agree to live with her in Sydney.

    10.I was so depressed during that period and forgot about my study completely.

    11.In or about February 2019, I moved with her and start living together as a couple.

    12.From February 2019 till April 2019, I was continuously asking her to withdraw her AVO but she didn't. In April 2019, we had arguments and she called Police. As a result, I was charged with Breach of AVO and Common Assault.

    13. This Police case put me under enormous pressure that my depression deteriorated.

    14.I was referred to a Psychologist Sutton, report enclosed.

    15.In or October 2019, I defended the above-mentioned charges successfully and case against me was dismissed by the Local Court Blacktown.

    16.In respect of the Breach of AVO was listed for hearing in the Mt Druitt Court. I pleaded guilty after receiving advice and sentenced CRO good behaviour Bond for 12 months.

    17.Since then I am trying to collect my life in Australia with the intervention of the Psychologist and now feeling confident.

    18.I now have an offer letter to study in GCA College Sydney Masters in Accounting.

    19.My family will assist me financially to complete my study. This study is very important to me and my family. This degree if l completed will open opportunities for a decent employment in my country.

    20.On the basis I request the Member to consider granting my application so I can continue with my study.

21. The applicant relies on several matters to explain the breach of the enrolment condition. First that he received the student visa “late” and was unable to commence his course on time. He produced no documents to corroborate this assertion and advanced no reason or document to corroborate his assertion that he could not make up the approximate three weeks of missed tuition. The Tribunal gives this assertion little weight. Secondly his difficult relationship with Ms Park is also relied upon. However the Tribunal notes that notwithstanding an AVO the applicant continued not only in a relationship with Ms Park but continued cohabiting with her for an extended period of time. If his relationship with Ms Park was such that he could not study then he had ample opportunity to remove himself from those circumstances but did not do so. Thirdly that he had “depression”. The Tribunal accepts the report of Mr Sutton, the psychologist, but it does not state that the applicant could not, as at the date of the report (9 September 2019) or on any other date, attend classes and study. The Tribunal gives this report little weight. Accordingly the Tribunal is not satisfied that the reasons for the applicant not maintaining his enrolment between 20 March 2018 and 10 July 2019 were as a result of matters beyond his control.

    Past and present behaviour of the visa holder towards the Department

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

23. The Tribunal was provided with no evidence on this point and gives it little weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

24. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

27. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.