khalil (Migration)

[2019] AATA 3925

khalil (Migration) [2019] AATA 3925 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Khalil

CASE NUMBER:  1703245

HOME AFFAIRS REFERENCE(S):           BCC2016/3101609

MEMBER:Wendy Banfield

DATE:18 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2019 at 12:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Diploma of Mechanical Engineering – not enrolled in registered course for more than 12 months – car accident – mental health issues – physical injury – family illness – lack of evidence – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 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 under s.116(1)(b) on the basis that the applicant had not complied with condition 8202 as he had not maintained enrolment in a course of study as required. The issue in the present case is whether that 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 24 years old. The applicant came to Australia in 2013 to study a Diploma at TAFE and Bachelor’s degree in Mechanical Engineering. In 2015 he was involved in a vehicle accident and thereafter discontinued his studies for a period of more than 12 months. The Department wrote to the applicant with a Notice of Intention to Consider Cancellation but the applicant did not respond and as a result his visa was cancelled.

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

   The hearing

5. The applicant confirmed he came to Australia in 2013 to undertake a study program in Mechanical Engineering. At the time, he held a five-year Subclass 573 Student Visa. Prior to arriving in Australia the applicant said he completed Year 12 equivalent in Pakistan. The applicant stated he completed three semesters of his Diploma but due to a car accident in 2015 he was unable to take exams. The applicant referred to evidence submitted at the hearing in this regard.

6. The Tribunal asked the applicant why he had not submitted the car accident evidence to the Department following the Notice of Intention to Consider Cancellation (NOICC). He said he had not logged onto his email in time although he had the relevant evidence. The applicant explained that in November 2015 he had been driving a van at 5 am, had fallen asleep and crashed into a truck. Afterwards he said he had suffered back pain and depression. The applicant said at the time he was working for a bread supply company for 10 hours per week.

7. The applicant advised that in 2017 he was involved in another accident in his own car where he hit a light pole. He also referred to a further motor vehicle accident in 2018 where he was hit by another car. The applicant said that the 2015 accident was relevant to the period during which he was not enrolled to study. He advised that at the same time his father was suffering from a heart condition. The applicant said that because of his accident he could not go and see his father.

8. The Tribunal asked the applicant to explain the reason why he had been unable to study for more than a year. The applicant advised that the accident in 2015 occurred just prior to his exams and he was later unable to re-enrol to complete his Diploma. He said it was a condition of his university entry that he complete the Diploma first. The applicant claimed he had tried to re-enrol when he was still holding a Student Visa but the education provider did not help him. He claimed that at the relevant time he completed a Diploma of Management instead. The applicant then clarified that he had actually completed a Diploma of Management at the same time he was enrolled in a Diploma of Engineering. The Tribunal advised the applicant he had still not accounted for his activities over the one-year period during 2016 when he had not been enrolled to study. The applicant claimed he did not do anything as it not been in good shape. He said he had worked for 10 to 20 hours per week when he was not studying. The applicant conceded he had not maintained enrolment for more than 12 months in breach of his Student Visa conditions.

9. The Tribunal advised the applicant it was accepted he originally came to Australia as a student since he had enrolled and commenced a course of study. Regarding any compelling need to remain in Australia, the applicant said that recently, in March 2019 he had enrolled in a Certificate III in Light Vehicle Mechanical Technology. He also provided COEs for a Certificate IV and Diploma in Automotive Technology. The applicant said he had enrolled in these courses as he had been unable to enrol at a university. He said this was because he had not completed his Diploma and was holding a Bridging Visa at the time. The applicant claimed he really wants to go into the automotive engineering field but still intends to go on to a Bachelor degree. The applicant said he wants to study in Australia because the automotive industry is more advanced than in Pakistan. He said if he completes the courses he is enrolled in he will be able to run a business in his home country.

10. The applicant claimed he had complied with all other visa conditions. He advised that he had just started a new job as a car detailer working 20 hours per week. The Tribunal asked the applicant about the level of hardship that may result from his visa being cancelled. The applicant said his family believe he is a good student and it is essential that he complete the courses he is enrolled in so he can make something of himself in future.

11. The Tribunal asked the applicant why he had only re-enrolled to study in March 2019 and not at any time before that. The applicant claimed he had only recently heard about these courses and enrolled in the next available course. He said his new education provider had accepted him despite him being on a Bridging Visa. The applicant said if he does not complete his studies he will have nothing and will be considered a loser in his home country.

12. Regarding the period during which he was not enrolled to study, the applicant claimed the accident involving a truck had left him with soft tissue damage and depression. He said the car was a complete write-off and he does not know how he survived. He agreed that while he had not been able to study he had worked in order to support himself. The Tribunal asked the applicant why he had not applied for leave or put his studies on hold until he was in a position to resume. The applicant did not say why but agreed he had not done so.

13. The Tribunal asked the applicant whether he understood legal consequences of his visa being cancelled. He confirmed he did understand and said his situation was his mistake including the car accident, his failure to inform his education provider and not studying while holding a Student Visa. He said he would like to fix the situation and if he is given a chance he will use it to improve himself. The applicant confirmed he is not married and does not have children. The applicant did not provide any other information to be considered in his case.

14. 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

15. 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?

16. 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).

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

18. In 2015 the applicant had been enrolled in a Diploma of Mechanical Engineering leading to Bachelor’s degree. Following a car accident the applicant did not complete the course and thereafter, was not enrolled to study for more than 12 months, from 30 December 2015 to 21 February 2017 while holding a Student Visa. 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

19. 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

20. The Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

21. Regarding any compelling need to remain in Australia the applicant advised he had recently enrolled in a series of automotive courses because he had been unable to enrol at any university while holding a Bridging Visa. According to the applicant, if he completes the courses he is enrolled in he will be able to run a business in his home country. However, he said he still intends to continue his studies to include a Bachelor degree. Having assessed the applicant’s submissions the Tribunal is not satisfied that recent re-enrolment in a series of vocational courses demonstrates a powerful or convincing reason for needing to stay in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and places no weight on this criterion in favour of the applicant.

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment as required by the conditions of his Student Visa which 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)

22. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In response the applicant said his family believe he is a good student and it is essential that he complete the courses he is enrolled in so he can make something of himself in future. The Tribunal has given some weight in favour of the applicant in this regard.

23. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

24. The grounds for cancellation arose because the applicant he had been enrolled in a Diploma leading to a Bachelor degree but he discontinued his studies following a car accident in November 2015. The applicant had provided evidence of his involvement in two further vehicle accidents in 2017 and 2018 but these occurred after his Student Visa was cancelled on 21 February 2017. The applicant advised he had been in a vehicle accident in the early morning while working as a delivery driver about in 2015. He said as a result of the accident he suffered soft tissue injury and became depressed. The applicant claimed this incident led to him being unable to take exams in his Diploma course and as a result he did not complete the course. He said he could not go on to study a Bachelor degree because he had not finished the pre-requisite Diploma.

25. The applicant advised that during the period from 30 December 2015 to 21 February 2017 when his visa was cancelled, he was depressed as a result of the accident and because his father was suffering from the ill-health. The applicant submitted documentary evidence regarding his vehicle accident and medical records in relation to his father who appears to have a heart condition and diabetes. The Tribunal accepts the applicant was involved in a vehicle accident prior in November 2015 and that his father underwent some medical testing and treatment at various times in 2016 and 2017. However in his evidence to the Tribunal, the applicant agreed he had not advised his education provider about his situation and had not applied for compassionate leave. He said that he had not been in the right place to study during the relevant period but conceded he had continued to work in order to meet his daily expenses. The applicant did not indicate exactly why his father having an illness meant he could not study and he did not return to his home country as a result. The applicant admitted that it had been a mistake not to resume his studies but did not provide a satisfactory reason for the gap of more than 12 months when he was not enrolled in any course, despite holding a Student Visa.

    The Tribunal has considered the circumstances in which the grounds for cancellation arose and is not satisfied they were to circumstances beyond the applicant’s control. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

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

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

26. 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

27. 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 consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

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

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

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved course of study which was the purpose for which the visa was granted. The Tribunal finds this weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

    Conclusion

30. 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 heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Wendy Banfield
    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.