Jafri (Migration)

[2019] AATA 5677

Jafri (Migration) [2019] AATA 5677 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Muhammad Wahaj Jafri

CASE NUMBER:  1832129

HOME AFFAIRS REFERENCE(S):          BCC2018/3842784

MEMBER:Helen Kroger

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2019 at 9:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Information Technology – not enrolled in registered course – did not commence course – enrolment cancelled – mental health issues – medical certificate provided – no evidence applicant sought assistance – waived right to appear – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 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 29 October 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 applicant, Mr Jafri, a Pakistani national, was granted a visa on 2 September 2016 for the purpose of studying in Australia.

3. On the 2 October 2018, Mr Jafri was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on 3 October 2018 from the applicant, explaining the circumstances around his enrolment.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant was sent an invitation, dated 18 July 2019, to appear before the Tribunal at a hearing on 8 August 2019, to provide arguments and evidence to support his appeal. The applicant, through his migration agent, waived his right to appear before the Tribunal, responding to the invitation on the 2 August 2019. The applicant, through his migration agent, has asked the Tribunal to review and make a decision based on the information and documents that are on file and before the Tribunal.

6. The applicant has provided a copy of the delegate’s decision to the Tribunal for the purpose of its consideration.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a visa on 2 September 2016 for the purpose of studying in a satisfactory registered course. According to the Provider Registration and International Students Management Systems  (PRISMS), as outlined in the delegate’s decision record that was provided to the Tribunal by the applicant, the applicant was enrolled in IELTS Preparation Course, commencing 2 October 2016 and a Bachelor of Business Information Systems, commencing 28 November 2016, at the Australian Institute of Higher Education Pty Ltd. PRISMS indicate that the applicant did not commence this as he moved to another education provider, Melbourne Polytechnic. PRISMS indicate that he obtained a CoE in a Diploma of Information Technology and a Bachelor of Information Technology, with the Diploma commencing 6 February 2017. The applicant did not achieve satisfactory progress for this course and as a result, his enrolment in the Bachelor of Information Technology was subsequently cancelled on 30 October 2017 by Melbourne Polytechnic.

11. PRISMS indicates that he obtained an enrolment in a Diploma of Hospitality Management on 13 July 2018.

12. In the applicants written submission (folio 16) to the delegate as identified above, the applicant indicates that “….after being in Sydney approximately one month my mental health stated was not greatest so moving to Melbourne to my brother was best option…” The applicant submitted a medical certificate (folio 31) attesting to his move to Melbourne that indicates he was missing his family, that it was the first time he had lived alone and that he was mental health as he was not working. In his explanatory statement to the delegate he indicates that he found the Information Technology course difficult and too hard to continue. The applicant does not dispute that his CoE was cancelled. He then applied for the Diploma in Hospitality and Management.

13. On the evidence before it, namely the applicant’s admission in his written explanatory statement to the delegate along with the medical certificate provided to support his claim in moving to Melbourne, the Tribunal finds that 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

14. 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’.

15. The information provided to the Tribunal, namely the explanatory statement and medical certificate provided to the delegate has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

16. The applicant is a Pakistani national who travelled to Australia for the purpose of studying and enrolled at the Australian College of Business Pty Ltd to undertake a study in IELTS Preparation Course and a Bachelor of Business Information Systems. According to PRISMS as indicated in the delegate’s decision record, the same provided by the applicant to the Tribunal, the applicant undertook the initial IELTS Preparation Corse from 12 October 2016 – 18 November 2016. The delegate received information from the education provider on 25 October 2018, that whilst the applicant was initially enrolled, he had cancelled his course and provided a medical certificate stating that he was suffering from stress and moved to Melbourne. The education provider confirmed that the applicant did not commence the course on his arrival in Australia and apologised to the delegate for not cancelling the CoE at the time.

17. This is supported by the applicant’s statement that indicates that he moved to Melbourne to be with his brother, approximately one month after his arrival, where he enrolled at Melbourne Polytechnic in a registered course. PRISMS indicate that the CoE in a Diploma of Information Technology commenced on 6 February 2017. The records from the education provider indicate that the applicant did not achieve satisfactory progress, achieving a mark of “W” in 13 units and a mark of “C” in 6 units and was cancelled on 30 October 2017 due to the non-payment of fees.  As a result of this cancellation, his enrolment in the Bachelor of Information Technology was cancelled on the 30 October 2017.

18. The applicant obtained an enrolment in a Diploma of Hospitality Management on 13 July 2018 at Brighton Educational Services Pty Ltd. This is a Vocational Education and Training Sector course which is not a registered course that complies with the condition of a Higher Education Sector visa.

19. In his explanatory statement, the applicant does not dispute his CoE cancellations and indicates that he was not aware that the VET course applied to a different visa classification.

20. Whilst the Tribunal accepts that the applicant travelled to Australia for the purpose of studying and has considered the personal challenges the applicant may have faced on his arrival, and has empathy with the challenges faced by the applicant in travelling to a foreign country, the Tribunal has considered the support services available to international students and there is no evidence before the Tribunal to indicate that the applicant sought advice, guidance or assistance. The Tribunal  has considered the significance of the period of time since the applicant has been enrolled in a registered course, along with the evidence that indicates that the applicant has not successfully completed a course since his arrival in Australia on 18 September 2016.

21. Accordingly, the Tribunal gives less weight in favour of the applicant and more weight to the significance of the breach, given the context of the time of a student’s study period.

    The extent of compliance with visa conditions

22. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

23. The applicant responded to the NOICC on 3 October 2018, providing a brief explanatory statement to the delegate explaining the circumstances around his enrolment changes after arriving in Australia. In that statement, he indicates that his “….mental health was not greatest…” and that he moved to Melbourne from Sydney after one month, to be with his brother. In a medical certificate, dated 21 September 2016, Dr Muhammed Saleem, confirms that the applicant  “….is missing his family and it will be better for him to move to Melbourne with his brother…”

24. In the applicant’s statement, he indicates that he was unaware that the Diploma in Hospitality and Management was a “lower class visa” and that he would “…love to continue studying in Australia following the right conditions.”  In this statement, the applicant does not indicate any financial, emotional, psychological or other hardships that he could potentially face should his visa be cancelled.

25. The applicant was invited to appear before the Tribunal to provide further evidence to support his claim and through his migration agent, waived the right to appear, asking the Tribunal to make a decision on the basis of a review of the material before it.

26. Whilst the applicant has indicated mental health concerns which necessitated his move to Melbourne from Sydney on his arrival, there has been no evidence provided to indicate that the applicant may be subject to any further hardships.

27. On the basis of the evidence before it, the Tribunal gives more weight to the significance of the breach and the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

28. The applicant submitted in his brief written statement to the delegate that he moved to Melbourne from Sydney after a period of one month, following his arrival in Australia.  In the medical certificate he provided to the delegate, it details that he was missing his family, that he had never lived alone before and that these circumstances were causing him stress. The Doctor wrote : “…I think if he is moved to Melbourne with his brother, Syed will have better mental health as he can have lot of help from his brother who is in Australia for many years.”

29. Having enrolled in a registered course of study at the Australian Institute of Higher Education Pty Ltd, the applicant did not commence the prerequisite IELTS and transferred to another provider, Melbourne Polytechnic, in Melbourne, with the CoE commencing 6 February 2017. In his written statement the applicant indicates : “…Originally I took submission into Melbourne Polytechnic studying Diploma + Bachelors in Information Technology. I found this course to be very difficult for me, and was very hard to continue…” PRISMS, as indicated in the decision record, suggest that the applicant achieved a mark of “W” in 13 units and a mark of “C” in 6 units, indicating that he passed less than a third of the units he commenced.

30. According to PRISMS, as detailed in the decision record, the CoE was cancelled due to the non payment of fees. There is no information before the Tribunal to indicate that the applicant contacted the Department anytime to advise the change to his circumstances or any other factors or circumstances around the time when the cancellation arose.

31. Given the above circumstances, and the information provided in the applicant’s written explanation provided by the applicant for consideration, the Tribunal gives limited weight to the reasons provided by the applicant and more weight to the significance of the breach in which the applicant was not enrolled in a registered course of study. As such the Tribunal finds these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

32. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

33. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision. The applicant would be excluded for a period of three years from applying for another to Australia as a consequence of the cancellation and the Tribunal gives this little weight in favour of the applicant.

    Whether any international obligations would be reached as a result of a cancellation

34. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

35. The applicant enrolled in a Diploma of Hospitality Management on 13 July 2018 at Brighton Educational Services Pty Ltd and commenced the course on 15 July 2018. The Tribunal has reviewed these circumstances and is satisfied that the course is a Vocational Education and Training course (VET) and therefore does not comply with the conditions attached to the Higher Education Sector visa and the applicant would need to consider applying for the relevant visa.

36. Whilst the Tribunal is not unsympathetic with the applicant in his wish to stay in Australia, seeking “another chance’” whilst indicating that he wishes to “….stay on the right track and follow my visa conditions and Australian rights”, the Tribunal does not consider it unreasonable for the applicant to be aware of the conditions attached to his visa, namely, satisfactory enrolment and progress with a registered provider in the Higher Education Sector.

37. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of 9 months is significant in the context of a student’s study period along with the fact that he has not successfully completed a course since his arrival in Australia on 18 September 2016, and that he made no attempt to contact the Department.

38. As such, considering the circumstances as outlined by the applicant in his written explanatory statement submitted on his behalf by his migration agent, the Tribunal concludes that the visa should be cancelled.

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

    Helen Kroger
    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.