IQBAL (Migration)

[2019] AATA 6598

IQBAL (Migration) [2019] AATA 6598 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Umar Iqbal

CASE NUMBER:  1727262

HOME AFFAIRS REFERENCE(S):          BCC2017/2938290

MEMBER:Donna Petrovich

DATE:4 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2019 at 4:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – limited academic progress – applicant changed and cancelled several courses – non-payment of course fees – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 116
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 30 October 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was unenrolled in a registered course of study. Therefore the applicant did not meet the requirements of condition 8202(2)(a). 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 9 May 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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

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?

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’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

   Does the ground for cancellation exist?

9. The applicant is a citizen of Pakistan, and was born on 14 September 1990, and is unmarried, but is engaged to a Pakistani woman, who resides in Pakistan. The applicant’s family remain in Pakistan and he has visited them on three occasions since he was granted his visa, including a visit to Pakistan for his Sister’s wedding. The applicant has cousins and a sister, who live in Tarneit, but otherwise has no other family in Australia. The applicant resides in a share house with friends and works as a console operator at a Woolworths Petrol Station for 20 hours per week.

10. The applicant’s movement records indicate that the applicant was initially granted a Vocational Education and Training Sector Visa (subclass 572) on 21 April 2015.

11. Relevantly the Provider Registration and International Student Management System (PRISMS) records indicate initially the applicant enrolled in a Certificate iv in Nursing commencing on 3 June 2010 and Diploma of Nursing 30 June 2011 both of which were cancelled and undertaken on a previous/earlier visa.

12. The applicant then enrolled in an Advanced Diploma of Accounting which he commenced 16 July 2012 which was cancelled and undertaken on a previous visa.  The applicant then started a Commerce (Accounting) courses which he commenced 31 December 2013, which was cancelled and undertaken on a previous visa.

13. He commenced a Bachelor of Business (Accounting) 20 October 2014 which was cancelled.  The applicant then commenced Bachelor of Business Accounting 16 March 2015 which was cancelled and an Advanced Diploma of Business 9 May 2016 which was cancelled.

14. The applicant’s movement records indicate that the applicant was initially granted a TU 572 Visa on 17 May 2011, a TU573 Visa on 25 September 2012, WA/101 09  on August 2012, TU572 17 June 2009, WE/050 on  09 2017, WA/010 on 14 March  2014, WA/010 on17 March 2011.

15. The applicant told the Tribunal that he had originally enrolled in Nursing but could not continue when it was discovered in the practical aspect of the course that the applicant was unable to work in this area for personal reasons.

16. He then undertook Accounting at Federation University and the applicant has four subjects remaining and is concerned that if he has to start again, it will be a waste of almost 10 years.

17. The applicant provided at the hearing emails which related to his cancellation of enrolment detailing his lack of diligence in deferring or applying for leave.  As the applicant did not action the advice from his Student Counsellor which was to not take extended leave of 4 weeks but chose to do so. He was advised that “Going forward, you will be required to comply with your visa conditions and re-apply for a new COE for next Trimester in order to finalise your studies”, Dated Aug 7, 2014, Signed Mark Anderson, Manager Student Services.

18. The Tribunal accepts that the applicant has changed courses and course providers on a number of occasions with PRISMS records (provided by the applicant and contained in the department’s decision record) indicating that the applicant was noncompliant with condition 8202 as he was not enrolled in a course of study from 16 January 2017 until the time of cancellation 30 October 2017. He did not study for a cumulative period of 9 months.

19. The Tribunal accepts that prior to his visa being cancelled the applicant was not enrolled in any course of study. The applicant has demonstrated a lack of interest and commitment in the studies he was enrolled in and a disregard for his visa requirement of maintaining his enrolment status. The Tribunal is therefore satisfied based on the reasons detailed above that the ground for cancellation in s116(1)(b) of the Act exist and find that the applicant was not enrolled in a course of study. The Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

20. 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’.

    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

21. The applicant told the Tribunal that his reasons for, purpose and stay; were that the came to study and get a degree to start a future.  Initially the applicant came to study nursing, which he studied for only one semester. He explained to the Tribunal that there were a few things that were not comfortable for him and that he could not face the more practical aspects of Nursing and therefore he requested and was granted a release letter in 2010. According to PRISMS records the applicant Enrolled in a Certificate of Nursing on 3/06/2010 and his enrolment was cancelled due to transferring to another course. He enrolled in an Advanced Diploma of Accounting which was cancelled, Bachelor of Commerce marked as finished 30/12/2013, Bachelor of Commerce 30/12/2014 cancelled, Bachelor of Business(Accounting) 15/10/2017 cancelled Bachelor of business (Accounting) non- payment of fees, cancelled 24/12/2017, Advanced Diploma of Business non- payment of fees, cancelled.  The Tribunal in reviewing the applicant’s verifiable academic progress over 10 years and his consistent lack of enrolment because of non-payment of fees considers the applicant to have failed to fulfil his responsibility as a student to maintain his enrolment. The Tribunal therefore gives no weight to this in favour of the applicant not to cancel the visa.

    Circumstances in which ground of cancellation arose

22. The applicant advised the Tribunal that he decided to go back to Pakistan to visit his family.  He provided the Tribunal with emails which he said related to his inability to enrol.  The applicant submitted that he had enrolled via email, however, the course co-ordinator did not open his email.  The applicant made representations that he was advised via post of a meeting that occurred whilst he was away in Pakistan in relation to his poor performance in his course.  He submits he did not receive the mail because he was away and subsequently his enrolment was cancelled. 

23. He also provided in the hearing emails which related to his cancellation of enrolment detailing his lack of diligence in deferring or applying for leave.  The applicant did not action the advice from his Student Counsellor which advised him not to take extended leave of 4 weeks.

24. The applicant was advised that,”Going forward, you will be required to comply with your visa conditions and re-apply for a new COE for next Trimester in order to finalise your studies”. Dated Aug 7, 2014. Signed Mark Anderson, Manager Student Services.

25. The applicant told the Tribunal that he thought he could enrol from overseas, he said that “enrolment was not the main issue”, that when he spoke to the enrolment officer” he would tell you the class number. You have to do all by yourself the enrolment officer only told you the class number.”

26. The applicant raised the issue on 3 or 4 occasions during the hearing about the length of time he has been in Australia. The applicant has held Student Visas for over 10 years and in this time has successfully completed only one of the courses he has undertaken. He also has for a variety of reasons been unable to gain the exemptions he requires or a current transcript of academic progress.  The applicant remained unenrolled for a period of 9 months during the period of 16 January 2017 to 30 October 2017. Although the applicant was given advice to re-enrol for the next trimester by Mark Anderson, Manager of Student Services, he did not action this advice which has resulted in the applicant’s current circumstances.

27. PRISMS records provided by the applicant and included in the department’s decision record detail reasons for cancellation of enrolment.  In the most recent case which is before the Tribunal, the applicant is listed as non-payment of fees as the reason for cancellation of enrolment.

28. The applicant’s explanation that he could not get himself enrolled because of various factors was detailed, and at times convoluted. The Tribunal has considered the timelines of the most recent non-enrolment and concludes that the applicant had every opportunity to resolve this situation as was his responsibility and he could have sought enrolment at another institution. The applicant told the Tribunal that he has only a few subjects to complete his course of study. The Tribunal has some sympathy to this circumstance, but gives no weight in favour of the applicant not to cancel the visa, because the applicant was aware of the imperative to re-enrol prior to leaving for Pakistan, and the potential implications of his failure to do so.

29. The responsibility sits with the applicant to ensure he meets the requirements of the visas and given that he knew this prior to leaving for Pakistan, the Applicant could have delayed his departure to ensure that his enrolment was a priority. The Tribunal does not consider the circumstances in which the ground for cancellation occurred to be beyond the applicant’s control.

    The extent of compliance with visa conditions

30. The visa being reviewed was granted 21 April 2015, on the 3 October 2017 the applicant was notified of the intention to consider cancellation of his visa, and his visa was cancelled on the 30 October 2017. The applicant admitted that he was not enrolled between 16 January 2017 and the date of cancellation 30 October 2017, a period of 9 months. This was verified by PRISMS records included in the Delegates Decision and provided by the applicant to the Tribunal. Therefore, the applicant did not comply with the visa condition and meet the requirements of condition 8202(2)(a). The Tribunal places no weight in favour of not cancelling the visa.

31. The applicant returned to Pakistan on 3 occasions to visit family and for his sister’s wedding.   He told the Tribunal that there was some “Political stuff, which related to a road block” and resulted in a slight delay in his return home. The applicant told the Tribunal he was not involved in this and it did not impact on his enrolment. The Tribunal places neutral weight.

32. The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attend courses, and progress academically.  He was not enrolled in a registered course from 16 January 2017 and 30 October 2017 a period of 9 months, whilst he remained in Australia on a visa which is for the purpose of study. He did not study for a significant period of time.

33. The applicant has had a significant period of non-compliance with conditions on his student visa and as such the Tribunal places no weight in not cancelling the visa.

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

34. It was submitted by the applicant that after being in Australia for a period of 10 years he could not go back to Pakistan without having obtained any qualification.  He also submitted that it would be very difficult for him to get employment without a degree. He told the Tribunal that it was a waste of time and had cost him a lot of money. The applicant told the Tribunal that he had not informed his family of his circumstances.

35. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and his family and that there are significant financial and emotional implications and consequences.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled. The Tribunal places no weight against the visa not being cancelled.

    Past and present behaviour of the visa holder toward the department

36. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some favourable weight.

    If the breach relates to a breach of r.2.43(1)(1a) by a Subclass 457 visa holder are there mitigating, compassionate and compelling factors

37. This is not a breach of the holder of a subclass 457 visa.

    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

38. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189.  The applicant would need to seek advice pertaining to his immigration status.  The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three year exclusion period unless he meets the relevant Public Interest Criterion.

39. The applicant’s approach to his studies has demonstrated a disregard for the visa and its requirements over the most part of his time in Australia (approximately 10 years) and not just for an isolated period. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.  The Tribunal places no weight against the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

40. There is no evidence that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

41. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any legal consideration if the delegate’s decision is upheld

42. The applicant told the Tribunal that there are no legal considerations of concern. There is no reason that the applicant would be prevented from going back to Pakistan if the Delegate’s decision was upheld.

43. The Tribunal is not satisfied that the applicant has a compelling need to travel or remain in Australia which would mean his visa should not be cancelled. The Tribunal places no weight against the visa not being cancelled.

    Any other relevant matters

44. The applicant told the Tribunal about a series of incidents involving his relationship with the Universities and his dealings with enrolment, payment of fees, lack of assistance by enrolment officers and fees which were not refunded or re-allocated to new courses. The applicant provided detailed verbal submissions at the hearing which related to previous course cancellations and other matters relating to non-provision of course records, transferring from courses, and a two year exclusion from Federation University.

45. All of the matters have been considered by the Tribunal and the Tribunal concludes that these issues are all related to matters between the applicant and the educational institutions. They are matters that need to be addressed by the applicant and his education provider and are outside of the Tribunal’s consideration.

46. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

47. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.16(1)(b) exists and the Tribunal is satisfied that the applicant was not enrolled.

48. 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).

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

    DECISION

50. 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 (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.