Khan (Migration)

[2019] AATA 467

Khan (Migration) [2019] AATA 467 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohail Riaz Khan

CASE NUMBER:  1702735

HOME AFFAIRS REFERENCE(S):           BCC2017/275092

MEMBER:Brendan Darcy

DATE:11 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2019 at 6:08pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased study – applicant’s family’s temporary financial hardship – psychological difficulties – applicant sought course deferment – applicant procrastinated over enrolment – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 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, on behalf of the Minister, cancelled the visa under s.116(1)(b) on the basis that the applicant had not been compliant with condition 8202 imposed on his student visa and the grounds for cancellation 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.

3. The applicant, a national of Pakistan, appeared before the Tribunal on 3 February 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the Tribunal hearing.

5. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments.

6. 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

7. 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?

8. 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).

9. The applicant granted a subsequent student visa on the same subclass on The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 6 December 2013 and the stay period of the visa was extended up to and including 15 March 2018. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study since 24 March 2016.

10. During the scheduled hearing, the applicant stated that he was originally enrolled in an ELICOS (or English language) course, a Certificate III in Commercial Cookery, a Diploma of Hospitality (Commercial Cookery) and Bachelor of Hospitality at NMIT.  He further stated that he completed the English language coursework before cancelling the initial enrolments in favour of a Certificate III in Hospitality, a Diploma of Hospitality and a Bachelor of Hospitality Management with Melbourne Polytechnic.

11. A departmental official validly issued the applicant a Notice of Intention to Consider Cancellation (NOICC) on 1 February 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

12. The applicant provided a written response to the NOICC on 8 February 2017. While the applicant provided reasons not to cancel the visa, he did not dispute there were grounds for the cancellation.

13. A delegate on the Minister’s behalf proceeded to cancel the student visa on 9 February 2017.

14. During the scheduled hearing on 12 December 2018, the applicant acknowledged he was not enrolled during this period of time.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study between 24 March 2016 and the date of cancellation – a period in excess of ten months.

16. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2) and that grounds for this student visa cancellation under review existed. 

    Consideration of the discretion to cancel the visa

17. 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’.

18. On the departmental file is a copy of the applicant’s written response to the NOICC on 8 February 2017, as well as financial documents and the a medical document dated 5 September 2016 indicating that the applicant had a deep burn on his left ankle.

19. On 23 November 2018, the applicant provided the same medical evidence submitted to the Department to the Tribunal to consider, plus a letter from a psychologist outlining the applicant’s mental health conditions.  Also submitted were the following medical evidence about the applicant’s father:

    ·     Army Cardiac Centre in Lahore indicating on 20 March 2017 for a 65 year old man named Riaz Khan;

    ·     An echocardiography report dated 28 January 2017 for Riaz Khan; and

    ·     30 March 2017 - prescribed drugs and normal activity and office duties for Riaz Khan.

20. At the beginning of the scheduled hearing, the applicant submitted the following documents: Confirmation of Enrolments (CoEs) indicating the applicant had been enrolled in a Diploma of Hospitality and a Bachelor of Hospitality Management at Melbourne Polytechnic on 15 September 2015; an academic transcript indicating the applicant completed a Certificate IV in Hospitality in 2014; and enrolment summary from Melbourne Polytechnic date 1 March 2016.

21. During the scheduled hearing, the Tribunal formally put to the applicant some adverse information under s.359AA and that he was not required to answer immediately. The information pertained to email dated 24 January 2017 from his education provide to the Department. It stated that the applicant applied to withdraw his enrolment on 24 March 2016 when it last received his updated contact details. It was explained that the information was relevant as it indicated the applicant had voluntarily cancelled his enrolment and that the information would be the reason or part of the reason to affirm the delegate’s cancellation decision. The Tribunal also stated that the applicant did not have to respond immediately. However the applicant immediately responded by stating the information about was incorrect and that the education provider did not notify the applicant of its intention to cancel his enrolment at all. The applicant undertook to submit emailed correspondence to support that he was granted a deferment.

22. (The Tribunal is satisfied the applicant was provided with the information in manner consistent with the Act’s adverse information provisions in relation to migration matters. Relatedly, it notes that the Tribunal provided the applicant was provided with an adequate amount of time to address the adverse information.)

23. At the end of the scheduled hearing, the applicant was provided with an opportunity for a post hearing and to do so by 15 January 2019. On 10 January 2019, the applicant forward an email from his education provider stating the applicant had been granted a deferment and that the maximum period of deferment for Melbourne Polytechnic was one month. It was dated 22 October 2015.  

24. The applicant also provided CoEs indicating the applicant had been enrolled in a Diploma of Hospitality and a Bachelor of Hospitality Management at Melbourne Polytechnic on 15 September 2015; an airfare booking indicating the applicant departed Australia for Pakistan between 11 January 2016 and 7 February 2016; and a 2016 training plan from Melbourne Polytechnic.

    The extent of compliance with visa conditions

25. During the scheduled hearing, it was discussed that the applicant had been non-compliant for a period of time that was in excess of ten months and that this was a substantial period of time not to be compliant with condition 8202. There is no evidence, either before the Department or the Tribunal, to indicate the applicant did not comply with other conditions. While the extent of non-compliance of condition 8202(2) is found to be substantial and significant by the Tribunal, it gives this factor minimal weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

26. In the applicant’s written response to the validly issued NOICC, the applicant claimed his father was unable to provide financial assistance for his tuition fees due to a downturn in his father’s business in 2015 and that he had medical and psychological impediments to remaining enrolled. The Tribunal notes the following extract from his written response to the NOICC:

    During this phase, I had an accident in September 2016 and hurt my foot due to which was unable to walk. Rather than facing the problems at hand, I choose to procrastinate and ignored them for as long as I could, I did not contact the university to enlighten them regarding my ongoing dilemma, as I was afraid to do so.  The fear of being rejected, abstained me from contacting the university and I kept procrastinate in this regard.  On my family’s insistence, I started to see a psychologist to help me during this stressful time. I have requested my psychologist to provide me with a medical certificate to prove my stance, and I’ll email it to you for your consideration, within a few days. (sic)

27. During the scheduled hearing, the applicant claimed sought deferment from studies which had been granted; and that he experienced a great deal of anxiety, social isolation and other mental health conditions. He explained that his social isolation led to his housemates expelling him and that he lived in a shed for four months.

28. The applicant provided medical evidence indicating the applicant had burn injuries to his left foot from September 2016. The Tribunal accepts this to have occurred although it does not indicate any significant physical barrier in remaining enrolment or gaining re-enrolment in itself

29. On the Tribunal’s file is a psychologist’s letter dated 2 September 2015. It states the applicant had attended treatment on same date as the letter and that the applicant reported poor sleep, anxiety, and concentration. The psychologist recommended further monitoring after he returned to Pakistan to reconnect with his family as part of his recovery and his efforts to return to study. There is no further medical evidence the applicant has any mental health conditions. During the hearing, the applicant admitted to only attending one further consultation when he returned to Pakistan.

30. Based on the available evidence, the Tribunal accepts the applicant did experienced emotional and psychological difficulties in 2015 and that this continued in 2016 until the date of his visa being cancelled. It accepts the applicant did experienced anxiety, social isolation and insecure accommodation. However, had the applicant’s mental health conditions been so debilitating, it would have been reasonable to expect a great deal more third party evidence of ongoing treatment of a more detailed report about his symptoms over the period of non-compliance. There is insufficient evidence before the Tribunal to be satisfied that the applicant has experienced mental health conditions that were so severe or debilitating that he could not address his non-compliance of condition 8202 over such a long period of time. The Tribunal further assesses on the evidence that while these conditions, both mental and psychological, were extenuating but not so extenuating as to be beyond the capacity of the applicant to avoid his non-compliance or to mitigate it with medical and psychological assistance. The Tribunal places some but not a considerable weight on this factor in favour of the visa being reinstated.

31. With regard to the financial situation, the Tribunal accepts the applicant did have financial difficulties in meeting tuition fees in 2015 for the reason claimed, given he was granted a deferment for compelling reasons and based on the financial evidence from 2015 about his father’s income.  However, the applicant also provided testimony that his brothers continued run his father’s business while his father was ill and he was unable to adequately explain his capacity to afford a return airfare to Pakistan in January 2016 when he claimed he was unable to afford tuition fees. Based on this mutually unsupportive evidence, the Tribunal does not accept the applicant’s financial capacity adequately explained his inability to remain enrolled or re-enrol during the period of non-compliance from March 2016 to the date of cancellation. The Tribunal places no weight on this factor in favour of the visa being reinstated.

32. With regard to the adverse information put to the applicant, the Tribunal provided the applicant that it had an email dated 24 January 2017 from his education provider that the applicant applied for the withdrawal on 24 March 2016 when we lastly got his contact details updates. He denied this and said the education provider initiated the cancellation and did not notify the applicant at all. The applicant undertook to provide evidence of a deferral in 2015, which he did in a post hearing submission. However the same evidence indicates he was clearly advised he must withdraw his enrolment if the deferment exceeded six months and then re-apply.  The Tribunal finds that the applicant’s submitted email evidence did not address or substantiate the specific contention raised by the Tribunal under the Act’s adverse information provisions, namely, whether the applicant initiated the withdrawal or not on 24 March 2016. Rather it indicated that he was required to reapply for enrolment after six months of having been granted deferment.  Furthermore his NOICC response stated that he chose to procrastinate and ignore his education provider as long as possible, further undermining the credibility of the applicant’s specific claim that he was not contacted or notified by his education provider about his enrolment in early 2016. Contrary to the applicant’s assertion that he was not notified of the cancelled enrolment in March 2016, the Tribunal finds that the adverse information in this case was credible and dependable evidence that the applicant did in fact initiate this enrolment’s cancellation and that the applicant’s specific responses to the adverse information lacked credibility. Furthermore the Tribunal finds that it was open to the applicant suitably re-enrol in registered course to avoid or mitigate his non-compliance with condition 8202. The Tribunal places some weight on the applicant’s initiation of the enrolment being cancelled in favour of the visa remaining cancelled.

33. The Tribunal also notes that the applicant made a late claim that he was ignorant of condition 8202. As discussed in the hearing, the applicant was emailed about the conditions imposed on his student visa when it was granted and that visa conditions and the implications of breaching them are typically realised at inductions with education providers for international students. The Tribunal also mentioned that he applicant stated in his written response to the NOICC that he knowingly procrastinated about his enrolment, indicating that he was aware of the non-compliance.  The Tribunal finds this specific claim and the applicant’s responses to the Tribunal’s questioning to be far-fetch and mutually unsupportive by other evidence. As the applicant lacked credibility in the regard, the Tribunal does not accept the applicant was ignorant of condition 8202 and finds the applicant raised this to augment his often weak and vaguely claims for his non-compliance. The Tribunal places no weight on this factor in favour of the visa being reinstated.

34. While the Tribunal accepts there were some extenuating circumstances, cumulatively considered, it does not accept they were so severe or significant, cumulatively considered, to be beyond the applicant’s control. Furthermore the applicant was knowingly aware of the risk of breaching condition 8202 in March 2016 and that he had ample opportunity to avoid or mitigate this breach over of a ten month period before the visa was cancelled.  Based on this overall finding, the Tribunal gives the evidence some but not considerable weight towards the visa not being cancelled.

    The purpose of the visa holder’s travel to and stay in Australia

35. The delegate provided some weight in favour the applicant in having experienced some financial and personal difficulties but also stated that he applicant given cumulative period in excess of ten months in which he was not enrolled, it was a reasonable expectation for a student visa holder to understand the intended purposes of the student is to be enrolled for full time study and that the stated intention at the time of application does not constitute a reason not cancel his visa.

36. When he was granted a student visa in 2013, the applicant was enrolled a vocational and degree-level qualification in commercial cookery and hospitality and that while he was enrolled in coursework as a student visa holder he remained enrolled in related coursework. However the Tribunal notes that e applicant has only completed an English language course and a Certificate III in Hospitality since he held student visas, indicating an overall lack of academic progress in an area relevant to the applicant’s career and business ambitions.

37. During the scheduled hearing, the applicant claimed he required his student visa to be reinstated so as to complete a Bachelor of Hospitality Management in order to open a restaurant. The Tribunal enquired whether such a degree was imperative in becoming a restaurateur and what the advantages it offered were. The applicant said that an Australian degree has much prestige or currency in Pakistan and he wanted to learn to be a manager in a restaurant. He added that he worked in Australia as a waiter and as a barista. With the Tribunal concedes there are some advantages in reaching these qualifications, the Tribunal does not accept the applicant required or strongly reliance on such degree-level qualifications to achieve his stated career ambitions as a restaurateur or as a manager in the hospitality sector. In combination with his significant non-compliance with condition 8202, the applicant has invited the Tribunal to consider that the applicant was at best half-hearted about full-time studies for this specific degree.  

38. Nevertheless, the applicant has provided some evidence that he sought a deferment of studies in 2015 which was granted for compelling reasons and the compelling reasons were for psychological conditions.  This indicates the Tribunal that he had some genuine personal difficulties and that these challenges are ongoing. On the other hand, the applicant’s breach of condition 8202 had been significant and the Tribunal has already made earlier adverse findings that the applicant had the capacity and opportunity to address his non-compliance over of more than ten month period, further indicating the applicant is not strongly motivated to complete his studies.

1. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal assesses there is insufficient evidence to accept the applicant is strongly motivated to complete his hospitality degree which is not required for his stated career ambitions. Accordingly it gives this considerable weight in favour of the visa being cancelled.

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

2. The delegate’s decision acknowledged some hardships arising from this cancellation given the applicant but there were not significant reasons not to cancel the visa. 

3. During the scheduled hearing, the applicant claimed that he feared his father’s health condition would deteriorate and that his parents have spent as much as 20,000 Australian dollars for his education in Australia. He added that if he returned without completing his studies would be difficult and it would be easier to complete the duties in Australia with which he was now familiar, and not Pakistan or some other country.  He also mentioned his family can afford tuition fees into the future.

4. While the Tribunal accepts the applicant’s father has some physical health problems and that the applicant has genuine psychological conditions, the Tribunal finds these stated responses to be weak reasons for the Tribunal to accept there are any significant hardships, financial, emotional or psychological, arising from the visa remaining cancelled. The medical evidence provided indicates the father’s health conditions are stabilised and are being treated. The Tribunal finds that the treatable health conditions of the applicant’s father would not substantially deteriorate if his visa remains cancelled, although it accepted there will be some disappointment arising from the applicant not completing his studies. The Tribunal also notes the applicant claimed that he used a psychologist or counsellor in Pakistan indicating his treatable conditions can be addressed if he returns to Pakistan. The applicant will also be able to return to Pakistan where he could complete his studies or enrol in another country given the applicant said his family will be able to afford tuition fees. Accordingly, the Tribunal finds that the applicant would not suffer any considerable or significant educational, psychological, financial or even emotional hardships with regards to his career or academic advancements if his visa remains cancelled.

5. With regards to his father’s health, the Tribunal places a little weight on the cancellation psychologically and physically impacting upon the applicant or the applicant’s father and that the applicant will be returning to a loving and supportive family, regardless of any personal or familial disappointment regarding the applicant’s academic progress in Australia. The Tribunal gives these specific hardship considerations little weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

6. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

7. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

8. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. Neither the applicant nor his representative at the scheduled hearing or in a written submission presented specific evidence in relation to this factor and accordingly the Tribunal gives this some weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

9. The applicant does not have any dependents. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

10. No claim during the schedule hearing or in his post hearing submission was advanced that the applicant is seeking asylum. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

11. The Tribunal has made some adverse credibility findings about specific claims and at times his answers were evasive and vague. When cumulatively considered, these claims lacking in credibility has invited the Tribunal to consider the applicant has either considerably exaggerated his otherwise genuine but not severe psychological difficulties. While this may be understandable, it also diminishes the Tribunal’s confidence that the applicant is a reliable person who will uphold the conditions imposed on him if this student visa under review were to be reinstated. Accordingly the Tribunal gives the applicant’s overall lack of credibility some weight towards the visa remaining cancelled.

    Conclusion

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

13. While the Tribunal has some sympathy for the applicant who lives with ongoing but treatable psychological conditions, his evidence was often exaggerated, mutually unsupportive and lacking in credibility. He did not demonstrate to the Tribunal he has any strong motivation or requirement to complete his studies. Neither did the applicant credibly or adequately demonstrate there were circumstances beyond his control leading to the grounds for cancellation; nor did that he will face any severe or significant hardship in having the visa remaining cancel. 

14. In this decision, specific unfavourable factors are found to be cumulatively significant and have considerably outweighed those countervailing favourable factors towards not cancelling the applicant’s student visa.

15. Considering the evidence provided and on weighing the above factors and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.