Jamshaid (Migration)

[2020] AATA 1695

Jamshaid (Migration) [2020] AATA 1695 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Junaid Jamshaid

CASE NUMBER:  1901683

HOME AFFAIRS REFERENCE(S):          BCC2018/4205257

MEMBER:Wendy Banfield

DATE:3 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 March 2020 at 2:23pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – condition to maintain enrolment – enrolment cancelled for non-payment of fees – enrolment in lower-level course and intention to progress to original level – father’s death and wife’s mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 573.231, Schedule 8, condition 8516

CASE

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with the conditions of the Student visa, specifically condition 8516. The applicant had been granted the Student visa in order to study a Bachelor of Business but his enrolment ceased on 21 December 2016. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Pakistan and is currently 27 years old. He came to Australia in 2016 to undertake higher education and specifically a Bachelor of Accounting. The applicant began the degree programme but ceased studying the course the same year. He enrolled in a Diploma of Accounting instead which was a breach of the conditions of his Student visa.

4. The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Gloria Santillena.

   The hearing

5. The applicant advised he first came to Australia on 28 May 2016 to study a Bachelor of Accounting. He said he had previously obtained a degree in fine arts in his home country. According to the applicant’s evidence, prior to his arrival in Australia his father passed away. The applicant submitted a death certificate in the name of “Jamshaid Butt” with a date of death listed as 1 April 2016. The applicant advised his father’s death led to a change in circumstances. He said his first trimester of study has been paid for but after his father’s death he had to study and take care of the family in Pakistan. He could not pay the fees to continue studying a degree and his Confirmation of Enrolment (CoE) was cancelled. The Tribunal asked the applicant why he still travelled to Australia given his father’s recent passing and he said everything had already been arranged, part of his course was paid for and it had been his father’s dream that he study in Australia.

6. The applicant advised that because he had paid for the first trimester of his course as well as health insurance, he tried to pay his ongoing tuition by working. Once the applicant’s CoE for his degree course was cancelled, he said an agent advised there was a “gateway” option where he could begin with a Diploma and continue on to a Bachelor degree. The applicant said he agreed but again he was unable to pay the fees required. When asked why he stayed in Australia when he had insufficient funds to study, the applicant repeated that he had to provide for his family in Pakistan. He added that it would be difficult if he returned to his home country without a degree. He also claimed he had not known he was in breach of visa conditions by enrolling in a Diploma course.

7. The applicant gave evidence that while in Australia he had worked in various jobs including construction, cleaning, in a car wash and as a waiter. He claimed this allowed him to support his family but it was not his main priority. The applicant explained that he did not send a large amount of money to his relatives however, at times the requirement to pay fees to study and his family’s needs clashed, such as when his mother needed dental surgery.

8. When asked whether he had considered postponing his studies until he was in a position to continue, the applicant replied he had approached his college but was advised he needed to have completed one trimester before he could take any leave. The applicant agreed the Department did have grounds to cancel his visa, but he claimed he had not been informed his CoE had been cancelled when he had enrolled in a Diploma of Accounting. Then when he had re-enrolled in a Diploma course, he said he received the Department’s Notice of Intention to Consider Cancellation (NOICC).  The Tribunal reminded the applicant it was his responsibility to comply with the conditions of his Student visa and while he acknowledged that was the case, he said he thought he just needed to maintain enrolment.

9. The applicant was invited to make submissions regarding any compelling need to remain in Australia. He said he married eight months ago and wants to stay in Australia with his wife. It was explained the applicant’s wife suffers from panic attacks. He said he still wants to study if there is an opportunity to but he also intends to apply for a Partner visa. The Tribunal put to the applicant that Student visas are temporary and he said he understood, however, his original plan had been to undertake a degree, study and work hard and support his family. The applicant referred to difficulties facing international students including the study fees and timeframes required for payment.

10. The applicant advised he had complied with other visa conditions. Regarding any hardship that would result from his Student visa being cancelled, the applicant said he and his wife and family will be affected. The Tribunal outlined the legal consequences of cancellation and the applicant stated he believed he would nevertheless be able to apply for a Partner visa. He indicated there are no consequential cancellations and he does not have children. In conclusion the applicant advised it is best if he stays in Australia as he and his partner want to live the rest of their lives together.

11. The applicant’s partner, Ms Santillena submitted that if the applicant’s visa is cancelled it will affect her emotionally and psychologically. She said the applicant has been her supporter while she suffered from mental health issues. Ms Santillena said she understood the applicant had made mistakes but said he had been misinformed and has stress in his life. Ms Santillena said their plans are to continue living together and apply for a Partner visa. She referred to difficulties they had experienced during the relationship but said she cares a lot about the applicant.

12. 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

13. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

14. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa.

15. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

16. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

17. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. In his evidence at the Tribunal hearing the applicant conceded his enrolment in a Bachelor of Business had been cancelled after the first trimester of the course because he was unable to pay the fees required to continue. Thereafter the applicant was enrolled in Diploma courses in Accounting and Business that were not in the higher education sector.  

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

19. 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

20. The applicant arrived in Australia to study a Bachelor degree and had commenced the course before discontinuing. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

21. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant advised he had married eight months ago and wants to stay in Australia with his wife. He said his wife suffers from panic attacks and needs his support. The applicant said he would still like to study if there is an opportunity to do so however, he wants to apply for a Partner visa.  The applicant’ partner Ms Santillena confirmed she has mental health issues and the applicant supports and assists her. No independent evidence of a diagnosed health condition concerning Ms Santillena was provided and the Tribunal is unable to place weight on this claim. The Tribunal finds that while the applicant may wish to remain in Australia, he had not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

22. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a Student visa and weighs against the applicant in this case.

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

23. During the hearing the applicant claimed he, his wife and his family would suffer hardship if his visa is cancelled. According to his evidence, the applicant’s had planned to complete a degree and work hard to support his family. The applicant gave evidence about the difficulties facing international students which include paying study fees and meeting the timeframes required for payment. The applicant did not elaborate or provide further details but the Tribunal accepts there will be a degree of hardship caused by cancellation of the Student visa and gives some weight in his favour in this regard.

24. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

25. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not continue his enrolment in the higher education sector as required by the terms of his visa. The applicant gave two reasons for this, he submitted his father had passed away shortly before he travelled to Australia and after studying for one trimester, he was unable to pay the fees required to continue his Bachelor degree. The applicant advised that after he studied the first semester of his course he was advised to change to a Diploma course and progress to a degree. The applicant claimed he was not aware this was a breach of visa conditions but the Tribunal does not accept this was the case. It is the responsibility of the applicant to ensure he complies with visa conditions and he would have been aware of the purpose of the visa grant. The applicant also submitted he had to help his family in Pakistan financially. In this regard the applicant said he has worked variously in construction, cleaning, in a car wash and as a waiter in an attempt to pay his own fees as well as support his family. He advised that his responsibilities sometimes overlapped causing financial difficulties.

26. The Tribunal sympathises with the applicant regarding his personal problems; in particular, his father’s death.  Nevertheless, the applicant chose to still travel to Australia when his father had passed away less than two months before. The applicant submitted he made the decison to do so because the arrangements had already been made and part of his course had been paid for. The applicant also claimed it had been his father’s dream that he study in Australia.  There is no doubt the circumstances outlined by the applicant were stressful but they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his Student visa.  In addition, the student visa programme in Australia enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. Student visas are not granted for the purpose of engaging in work to provide for family members. If this was the responsibility of the applicant as he claimed, he should have deferred or discontinued his studies and returned to his home country.

27. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study at the required level, or seek a deferment of his studies during the period when he was unable to comply with visa conditions. Therefore, the Tribunal places limited weight in the applicant’s favour on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

28. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department however, he did not provide a response to the NOICC that allowed him an opportunity to make submissions about his circumstances at the relevant time. The Tribunal places neutral weight on this consideration in deciding whether to exercise the discretion to cancel the applicant’s visa.  

    ·     whether there would be consequential cancellations under s.140

29. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

30. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

31. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. The applicant advised he does not have children and there are no civil or political issues that would prevent him returning to his home country.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

33. The Tribunal took into account the applicant’s advice that he has since married, and also considered the evidence provided by his partner Ms Santillena. The Tribunal did not consider the applicant’s relationship and his desire to apply for a Partner visa in Australia outweigh the reasons for the Tribunal to exercise its discretion to cancel the Student visa.

    Conclusion

34. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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 Subclass 573 Higher Education Sector visa.

    Wendy Banfield
    Member