Khan (Migration)

[2019] AATA 3658

Khan (Migration) [2019] AATA 3658 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Majid Naeem Khan

CASE NUMBER:  1730696

HOME AFFAIRS REFERENCE(S):           BCC2017/3515932

MEMBER:Joseph Lindsay

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2019 at 10:22am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – non-payment of course fees – limited academic progress – financial hardship – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 November 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 applicant attended the hearing before the Tribunal on 5 April 2019. The applicant was not represented by an agent. The applicant spoke English well and indicated he did not need an interpreter.

3. 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

4. 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?

5. 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).

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

7. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department of Immigration and Border Protection dated 24 November 2017 indicating that he had not been enrolled in a registered course of study since 19 April 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 19 April 2017.

8. 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)(a) of the Act. The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

9. Having found that the applicant has not complied with conditions 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 circumstances in which the ground for cancellation arose

10. The Tribunal asked the applicant why he had not been enrolled in a registered course of study since 19 April 2017.

11. In response, the applicant indicated that his father is a superintendent of police in Pakistan. However, the applicant indicated he had no documentation to prove that his father was indeed a superintendent of police in Bhawalnagar, Pakistan. The applicant indicated that his father held that position since 2011. The applicant indicated that his father was demoted from his position and as a result the applicant could not pay his course fees. The applicant indicated that he made a bad choice by not asking his father for money to pay his course fees. The applicant indicated he therefore did not pay his course fees. The applicant indicated that this was the reason why he stopped studying. The applicant indicated he did not have any documentation from his then course provider, Holmes Institute, about the situation. The applicant indicated that he could provide documentation showing that his father was a superintendent of police in Pakistan and he could provide documentation from Holmes Institute showing that he could not pay his course fees. The Tribunal put to the applicant that he was notified in his hearing invitation that he could provide documentation to the Tribunal yet he had not done so by the day of the hearing.

12. The Tribunal asked the applicant what he did when he found that he could not pay his fees. The Tribunal asked the applicant whether he notified his provider and whether he notified the Department. In response, he indicated that he told his provider. When the Tribunal asked the applicant whether he had any documentation to show that he notified his provider, the applicant indicated he did not have any such documentation.

13. However, the applicant’s Provider Registration and International Student Management System (PRISMS) record indicated that the reason why the applicant had stopped studying on 12 April 2017 was because he had told his course provider he ceased his studies. 

14. The Tribunal also put to the applicant that in his PRISMS record there was a number of recorded variations to his course enrolment, that included non-commencement of studies and that included unsatisfactory course progress. The Tribunal put to the applicant that his PRISMS record indicated there was also another instance on 21 November 2016 with a reason why he had ceased enrolment in that course was due to non-payment of fees. The Tribunal put to the applicant that on the date in question, 19 April 2017, when he ceased enrolment in his Bachelor of Information Systems, the reason given by the course provider was “student notifies cessation of studies”. The Tribunal explained that this information was relevant because the applicant had told the Tribunal that the reason why he stopped studying in April 2017 was because he could not pay his course fees yet his PRISMS record showed that he notified his course provider that he would cease his studies. The Tribunal put to the applicant that this information indicated that the applicant may not be providing truthful information to the Tribunal about the reason why he stopped studying in April 2017. The Tribunal put to the applicant that as a result the Tribunal may find that he was not giving credible information to the Tribunal as to why he stopped studying. The Tribunal asked the applicant if he wanted additional time in which to respond to the information. In response, the applicant indicated he did not want an adjournment and wanted to answer the question the Tribunal had put to him. In response, the applicant indicated that he wanted to speak to the Tribunal about his relationship with Holmes Institute. The applicant indicated that he had paid his half semester fees for his third semester. He indicated that half of his fees were due and that his course provider would not let him sit his exams. He indicated he approached his course provider and they agreed to let him sit his exams and then pay the remainder of his course fees. He indicated he asked for a chance to sit his supplementary exam so he didn’t waste his semester. He indicated that his principal showed him his marks but that ultimately he was not able to sit his exams. He said that after that his father’s incident happened in Pakistan. He said that he then decided to use this opportunity to get a bit of money.

15. In further discussion with the Tribunal the applicant indicated that even before 2017 he was struggling to pay his course fees. The applicant confirmed he then did pay his fees. He indicated that while his exams were scheduled at a particular time he did not sit those exams and was actually not permitted to sit the supplementary exam by his principal.

16. When the Tribunal asked the applicant whether he was struggling academically he responded that before Holmes he was struggling academically. But that he was not struggling academically and that he was passing his subjects when he was undertaking his course at Holmes Institute.

17. When the Tribunal asked the applicant whether he spoke to his course provider, Holmes Institute, he indicated he did not speak to Holmes Institute. He indicated that he took the opportunity to go and earn money so that he could pay for his next semester’s course fees and he indicated he did not want to be a financial burden on his father.

18. The Tribunal put to the applicant that he would be reasonably aware that he had to give a financial guarantee that he could pay his fees, and in response he agreed that he was aware that he had to provide that financial guarantee.

19. The Tribunal asked the applicant what information he had to show the Tribunal that he could now pay his course fees. In response the applicant indicated that his father had been reinstated to his previous rank and was now in a position to pay the fees. The Tribunal put to the applicant that his student visa was cancelled on 24 November 2017. The Tribunal also put to the applicant that his course enrolment was cancelled on 19 April 2017. The Tribunal put to the applicant that it was more than seven months after he had his course enrolment cancelled that his student visa was cancelled on 24 November 2017. The Tribunal put to the applicant as at the date of the hearing (5 April 2019) the applicant had no documentation to provide the Tribunal at all in relation to what he had said at the hearing. The Tribunal put to the applicant that he had been given a substantial amount of time in which to provide information and in those circumstances was not willing to provide further time in which to provide the documentation.

20. The Tribunal put to the applicant that the Tribunal reasonably expected that if he had run into financial difficulty he would have approached his provider to speak to them about what solutions if any may be available to him. The Tribunal also put the applicant that it would reasonably expect that if he had run into financial difficulty and had difficulty in complying with his visa conditions he would speak to the Department about that situation. The Tribunal put to the applicant that he had already indicated at the hearing that he did not speak to his course provider or the Department about his financial circumstances or seek any assistance from them to help him in his circumstances.

21. In response the applicant indicated that he was suffering financially and that his studies were very important to him. The Tribunal put to the applicant that, given what he had told the Tribunal, the Tribunal would reasonably expect the applicant would bring documentation with him to the Tribunal in respect of what he had said to the Tribunal.

22. The Tribunal put to the applicant that it had no documentary information from the applicant about his financial situation. The Tribunal put to the applicant that it had no documentary information about his father’s situation and that the applicant had a significant amount of time in which to provide that information to the Tribunal and yet he had not done so by the date of the hearing. The Tribunal put to the applicant that it had been two years since he had stopped studying and some 18 months since his visa had been cancelled. The Tribunal put to the applicant that for these reasons the Tribunal was not going to grant him further time in which to obtain documentation.

23. The applicant responded that at the time his course was cancelled he was mentally stressed and he did not know the process about what he had to do to help himself.

24. The Tribunal asked the applicant what he had done since he had stopped studying to demonstrate to the Tribunal that he could complete his bachelor’s degree, pay his fees, pass his subjects and complete his qualification.

25. In response the applicant indicated he when he applied for a Bridging Visa E he was not allowed study rights and thought he could not get them. The applicant indicated he did not have much information. The Tribunal put to the applicant that had he gone to the Department to ask them about applying for study rights, he could have gained information from the Department about this situation. The Tribunal put to the applicant that he had indicated to the Tribunal that in the two-year period in which he stopped studying he had not approached the Department at all.

26. The applicant indicated to the Tribunal that he had spoken to his father and his father had promised to provide the applicant financial support if he was to get his student visa.

27. The Tribunal put to the applicant that he could undertake his studies in Pakistan. In response the applicant indicated that his brothers had studied in Pakistan but that it was his father’s dream that the applicant complete a course of study in Australia.

28. The Tribunal put to the applicant that he had received advice and assistance from Carina Ford Immigration Lawyers. The Tribunal referred to the NOICC that Carina Ford had prepared on behalf of the applicant. The Tribunal put to the applicant that he appeared to be telling the truth to the Tribunal. However the Tribunal put to the applicant that it had to balance the information that he had given to the Tribunal but that there appeared to be an absence of information on important matters including his ability to pay his course fees. The Tribunal asked the applicant that if he were to provide financial information what it would be. In response the applicant indicated that he could get financial information from a Pakistani bank account. The Tribunal asked the applicant whether he could provide information from an Australian bank account. The applicant indicated he could but he did not have much money in his Australian account and indicated he only had about $200 or $300 in his bank account.

29. The applicant indicated that in the approximately seven months after his course enrolment was cancelled he worked but has not worked since his student visa was cancelled and he has been on a Bridging Visa E with no work rights. He indicated that since that time his father has not been financially supporting him and he has been getting by only with the help of his Pakistani friends who he lives with.

30. In considering the above, the Tribunal accepts that the applicant experienced financial difficultly and that he was not able to pay for his course fees and that led to the cancellation of his course enrolment in April 2017. However, the above information does not convince the Tribunal that the applicant would reasonably be able to pay for his course fees even if he had a student visa. Despite the applicant saying his father’s employment situation has improved and he would be able to pay the applicant’s course fees, the lack of documentation to support any of the applicant’s assertions in this respect does not convince the Tribunal that the applicant would reasonably be able to pay for his course fees even if he had a student visa. There has been more than one instance of the applicant not being able to pay his course fees. As part of getting his student visa, the applicant provided a financial guarantee that he could pay his course fees and support himself. But it is abundantly apparent to the Tribunal that the applicant is not likely to be able to pay his course fees even if he were to have a student visa. The Tribunal places low weight on the applicant’s verbal assurances that he would be able to pay.

31. The Tribunal also places some weight on the fact that the applicant made no attempts to speak to his course provider or the Department in an endeavour to get their assistance for his situation. Even though the applicant initially indicated he did speak to his course provider, he subsequently later admitted that he did not speak to his course provider. While the applicant admitted he made a mistake in not contacting his course provider or the Department to get their assistance, the Tribunal finds that the applicant was reasonably aware of his visa conditions and failed to take reasonable steps to adhere to those conditions in the circumstances.

32. The Tribunal finds that the applicant’s claimed circumstances as to why he did not remain enrolled are not exceptional circumstances.

33. The Tribunal gives low weight to the applicant’s circumstances as to why he did not maintain his course enrolment.

    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

34. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

35. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

36. In respect of the degree of hardship that may be caused to the applicant should his student visa be cancelled, the Tribunal noted that he had already provided some information about this in the response to the NOICC where he indicated that he would face a significant degree of hardship if his visa would be cancelled.

37. The Tribunal invited the applicant to speak further about this issue. He indicated that at the time he faced difficulty in paying his course fees and that he had spoken to his mother in Pakistan who indicated to him that his father was under a lot of stress financially due to his situation. The applicant indicated that as a result he decided not to tell his father about his situation. The applicant indicated it was the biggest mistake he made (the enrolment cancellation). The applicant indicated that his father found out and became very angry but then he said he would support his son if he were to get the student visa. The applicant indicated the situation has been hard on his father.

38. The Tribunal asked the applicant what hardship specifically he would face if his student visa was cancelled and he returned to Pakistan. The applicant responded that he really wanted his degree and that without it he would face hardship. He indicated that he wanted to make a happy life and that he wanted to make his father happy and that the Australian qualification would achieve those outcomes for him. He indicated that the only way for him was to complete his degree to make his father happy and give him a happy life. The applicant indicated that he will be 27 years old in August and indicated he was concerned that if he went back to Pakistan and is required to start from the beginning he would be much older when  he completes his studies whereas he indicated he only had three semesters to go of his course in Australia.

39. In consideration of the above, the Tribunal accepts that if the applicant’s student visa was cancelled, he would experience the difficulties as he has described. The Tribunal accepts that the applicant’s situation has been stressful for himself and his family back in Pakistan. The Tribunal accepts that the attainment of an Australian degree is important to the applicant and his family. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to Pakistan without completing his Australian degree, this situation will cause emotional distress to himself and his family in Pakistan.

1. However, it is expected that the circumstances would reasonably cause emotional distress for the applicant and his family. And for this reason the Tribunal gives some weight in the applicant’s favour in regard to this factor.

   Past and present behaviour of the applicant towards the Department

2. There is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

3. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

   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

4. At the hearing, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa, in particular that when his student visa was cancelled he needed a visa to remain in Australia lawfully.

5. The applicant indicated that if his visa was cancelled he would not be unlawful.

6. The applicant appeared aware that the consequences of him being unlawful were that he may be liable to detention and removal from Australia. 

7. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

8. The Tribunal places low weight on this information in the applicant’s favour.

   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

9. The Tribunal asked the applicant if he feared anything in returning Pakistan and in response he indicated that the only thing he feared was his future. When the Tribunal asked him to explain what he meant by that, he said that going back to Pakistan without a degree would mean he couldn’t do anything and he would be jobless and he would not have a good life. He indicated he thought he deserved a better life and that for his own future he wanted to finish his course. He indicated he wanted to make his father feel proud and feel happy.

10. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

11. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

12. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that there were no other relevant matters he wanted the Tribunal to be aware of.

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

    Conclusion

14. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 12 April 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

15. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay
    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.