KHAN (Migration)

[2019] AATA 3227

KHAN (Migration) [2019] AATA 3227 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HASSAM KHAN

CASE NUMBER:  1727780

DIBP REFERENCE(S):  BCC2017/2939018

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 April 2019 at 3:01 pm (VIC time)

DATE OF WRITTEN RECORD:                16 May 2019

PLACE OF DECISION:  Melbourne

Statement made on 16 May 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – affected by family issues –ssuccessfully completed nine out of 16 units required to obtain Diploma of Information Technology – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8, condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 November 2017 to cancel the Applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 18 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is the decision of the Administrative Appeals Tribunal in case number 1727780, in the matter of Hassam Khan.  The time now is 2.46 pm on 18 April 2019.

4. The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 November 2017, cancelling his subclass 573 student visa, pursuant to section 116 of the Migration Act.

5. The Applicant’s visa was granted on 27 September 2014, with an original expiry of around 16 December 2017.  The visa had been granted on the basis that the Applicant would remain enrolled in and make satisfactory progress in relation to one or more registered courses of study for the duration of his stay in Australia.  The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.  The issue in the present case is whether that ground of cancellation is made out and if so, whether the visa should be cancelled.

6. The Applicant appeared before the Tribunal today to give evidence and present arguments. 

7. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations. In the present case, the issue is whether the Applicant has breached Condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to section 116 of the Act. Condition 8202, as set out in schedule 8 of the Regulations, requires the Applicant to be enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 3 January 2017 to 1 November 2017, as being the relevant period in which the Applicant was not enrolled in a registered course. The date of 1 November 2017 is simply the date of the decision. This amounted to a total time of more than 10 months when the Applicant was in continuous breach of the visa.

8. The delegate’s finding in this respect, was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System, otherwise known as PRISMS.  The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act that provides a means for education providers in Australia to comply with legislative requirements pertaining to the international students studying in Australia. 

9. In this regard, the PRISMS database performs two important functions.  First, it permits registered course providers to issue confirmation of enrolment certificates to students, upon enrolling in a registered course of study.  That certificate, known as a COE, may then be used by the student when applying to the Department for a student visa.  A current COE is treated by the Department as prima facie evidence of a visa Applicant currently being enrolled in a registered course of study, for the purposes of clause 500.211 of the Regulations.  Being enrolled is an essential preliminary requirement that must be satisfied if a student visa is to be issued.

10. Secondly, the PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with the visa conditions once a visa has been issued.  In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.  The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course since 3 January 2017. 

11. In his oral evidence given at the hearing before the Tribunal today, the Applicant conceded, that is, he admitted that his enrolment in a registered course of study had ceased.  I will come to the circumstances of that a bit later. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa for approximately 10 months in 2017. 

12. 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 the Regulations that must be considered in the exercise of this discretion.  However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing and any relevant matters identified in the Department’s procedures advice manual called “General visa cancellation powers”.

13. First of all, the Tribunal must consider the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to remain in Australia.  The purpose of the visa holder’s travel in Australia was, of course, to study.  The visa had been granted on the basis that the Applicant would enrol in and complete, first of all, a Certificate IV in Frontline Management, followed by a Diploma of Management and then a Bachelor of Business.  It was a ‘course package’, as it is commonly called, and the period of the original visa grant was determined by how long it would be expected for a student to complete all of those three courses.  That was estimated to be three years, two months and 18 days. 

14. According to the PRISMS database, the Applicant only completed the Certificate IV in Frontline Management.  That is what the database says, but in the evidence received by the Tribunal today, the Applicant stated he did not even complete that.  In that regard, the PRISMS database is clearly in error.

15. With respect to the Applicant’s evidence in that regard, the Applicant stated that he started and attended classes in the Certificate IV in Frontline Management, which was at Cambridge International College, but he did not pass anything.  It was a year long course.  He went to class, but it became evident that he was not doing very well.  The Applicant stated that he did not pass anything.  He explained that as being caused by him only recently having come to Australia.  He had not been to any other country.  I also note that at this particularly point in time in his life he was only 22 years old and still relatively young.  The biggest difficulties he had in coming to Australia, the Applicant stated, was English, but it is apparent since he has been in Australia, his English has radically improved.  But the Tribunal accepts the evidence in this regard.

16. The Tribunal also took note of the Applicant’s evidence and the Tribunal accepts this evidence that for the first year at least, the Applicant had considerable stress arising from the situation with respect to his family back in Pakistan.  He is the oldest of three children.  He is currently 27 years old.  He also has a sister, who is 25 and a younger brother, who is 20. When he came to Australia back in 2014, he was only 22, meaning his sister and brother were much less than 20 years old.

17. The issue that was of concern to the Applicant related to his parents’ situation.  There appeared to be some domestic issues and problems in the relationship and that had a considerable impact of the Applicant’s emotional wellbeing and stability while he was in Australia.  Some details were given in relation to that at the hearing before the Tribunal.  The Tribunal will not set them all out but, ultimately, the Tribunal accepts the evidence of the Applicant and how that impacted on him emotionally and that it was likely to have an impact on his studies.  That explains why he never passed the Certificate IV.

18. It became evident that the Certificate IV was not working, so the Applicant stated that he enrolled in a Diploma of IT Networking at VIT.  The Tribunal was presented with documentary evidence demonstrating that he was indeed enrolled in that particular course and obtained that evidence from the VIT itself. It indicates that he started this in 2017 and progressed somewhat through to January 2018.  The document he provided from VIT indicated that he passed nine units out of a total of 16.  Passing 16 would have resulted in a successful achievement, giving him a diploma.  But he failed six units. 

19. It was at that point, at the end of the diploma, he went to the Head of Department in this IT course and asked if he could re-enrol and pay for whatever fees that were needed to be paid for those six units that he had failed.  According to the Applicant’s evidence, which the Tribunal accepts, he was told by the Head of Department that he would not be able to simply re-enrol in those six units, but he would have to re-enrol in the entire diploma again and start the nine units, which he had already passed, again and do those all over, plus the six which he had failed.  He was also presented with a document by the Head of Department, which he would have to sign, acknowledging that he had made unsatisfactory progress and indicating that he would have to seek re-admission to the course from scratch. 

20. He did sign that document, but then the Head of Department directed him to the Admissions Department, which the Applicant said in evidence were different and had to make their own determination as to whether or not he could be re-enrolled in the diploma.  They rejected his application, because of his poor progress, that is, he failed six units.  This understandably left the Applicant quite distraught as to his situation and here we get to the start of the period where he ceased enrolment all together.

21. The Tribunal made enquiries of the Applicant as to why he did not look elsewhere at another course provider to enrol in something.  The Applicant stated that he did some research, but he was concerned that he would not be accepted into anything because his visa was due to expire at the end of 2017 and he thought that no course provider would take him, given that he did not have much visa currency left. 

22. The Applicant stated that he spent the most part of 2017, every day, for many, many hours playing computer games.  While this is not satisfactory at all for somebody in the Applicant’s situation, when they are supposed to be here studying, the Tribunal does understand that games, such as ‘League of Legends’, strategic games, role-playing games, can be quite addictive and they can overrun young people’s lives at this particular stage in their development.  While there was no evidence of this provided, independent of the Applicant’s testimony, the Tribunal accepts the evidence of the Applicant in this regard and while the Tribunal in no way accepts this as a reasonable excuse for not continuing to study and pursue other routes, the Tribunal is at least, to some extent, sympathetic and understands that there is a problem.

23. In all of these circumstances, the Tribunal has some degree of sympathy, because it has, for the first time, unlike the Department in this case, been apprised of the circumstances which led to the cessation of studies.  The Tribunal has also taken into account that he did make some progress in relation to the Diploma of Information Technology, having completed successfully, nine out of the 16 units required to obtain the diploma.

24. In relation to other considerations that I am obliged to consider, I have turned my mind to the Applicant’s past and present behaviour in relation to the Department.  There is nothing adverse in that regard.  I have turned my mind to whether or not there might be consequential cancellations of visas under section 140 of the Act.  There are none that are apparent.  I have turned my mind to whether there are mandatory legal consequences, such as where the cancellation would result in the visa holder being unlawful and liable to detention and whether indefinite detention is possible or whether there are provisions in the Act which prevent the person from making a valid visa application with the Minister’s intervention.

25. Eligibility would exist for the submission of an application for a bridging visa, which may allow the lawful presence in Australia, so that any outstanding matters can be finalised.  I note that if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention and removal under the Act if he does not voluntarily depart Australia.  He will also be subject to section 48, which means he will have limited options if applying for further visas and Public Interest Criterion 4013 will also be applied, which means he may not be granted a temporary visa for three years, or at least he will definitely have difficulty in seeking one.  There do not appear to be any relevant international obligations triggered by this cancellation. 

26. Those are all the relevant matters I need to turn my mind to.  In all of the circumstances, I take the view that the Applicant’s visa should not be cancelled. 

    DECISION

27. The time being 3.01 pm, in case number 1727780, in the matter of Hassam Khan, the Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa and in its place, I substitute a decision not to cancel the Applicant’s Student (Temporary) (Class TU) visa.

    Dr Jason Harkess
    Member