Khan (Migration)

[2019] AATA 972

Khan (Migration) [2019] AATA 972 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ali Zeb Khan

CASE NUMBER:  1710380

HOME AFFAIRS REFERENCE(S):           BCC2017/1081782

MEMBER:Helen Kroger

DATE:10 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education

Statement made on 10 January 2019 at 2:14pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant’s health issues – family financial difficulties – political unrest in Pakistan – advice from course advisor – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 116, 189
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 8 May 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, Mr Khan, a Pakistan national, was granted a visa on 15 April 2016, to study in Australia.

3. On the 21 April 2017, Mr Khan was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 22 April 2017.

4. The delegate cancelled the visa on the basis that that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

5. The applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

6. The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 21 April 2017 and the delegate received a response on the 22 April 2017 providing reasons why the visa should not be cancelled. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that he had not been enrolled in a registered course since 11 July 2016, a period of 9 months before the NOICC was issued. The applicant confirmed at hearing that this was correct and that he had not been enrolled in a registered course of study at that time.

11. On the evidence before the Tribunal, namely the applicant’s admission during the hearing along with the written submission by the applicant in response to the NOICC, and the written submission submitted to the Tribunal, dated 31 December 2018 (folio 25-29),  the Tribunal finds that 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

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.

13. 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’.

14. The Tribunal has considered the applicant’s submission provided to the delegate, written submissions to the Tribunal and the evidence submitted during the hearing to support his claims.

15. The information provided to the Tribunal at hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

16. The applicant, Mr Khan, is a Pakistan national who is 32 years of age. He first travelled to Australia in 2016 with the intent to study for a Masters of Business Administration at RMIT. He had previously graduated in Computer Science at the University of Punjab, Pakistan in 2008 and was employed in telecommunications and marketing for a number of years before arriving in Australia for the purpose of studying. He commenced his MBA at RMIT, completing seven out of nine units, before experiencing health issues that were compounded by financial difficulties that were being experienced by his parents. His father was financially supporting both course enrolment fees along with his cost of living. His father who runs a transport business in Pakistan was severely impacted by a family legal dispute, that affected the availability of funds to pay for his son’s course. This cash flow was exacerbated by the political unrest that beset Pakistan, that in effect, closed down the streets of Islamabad for an extended 123 day period, severely limiting the capacity of his father’s transport company to operate.

17. The applicant claimed at hearing that as this occurred during his last semester, it was too late to defer, and he subsequently acted on advice from his parents, and remained in Australia. They contended that it was unsafe for him to return home due to a family dispute and the possible motivation and action of his Uncle in relation to that family dispute. The applicant submitted that he sought work on a casual basis, and in accordance with the conditions attached to his visa, to cover his personal living expenses.  He then sought advice from a course advisor, Career Education Consultancy Agency, who recommended that he transfer to a cheaper course at Holmes. His parents secured a small loan to fund this enrolment and enrolled for a MBA.

18. The applicant at hearing explained at length the physical and psychological toll these events were having on his health and submitted various documentation supporting his financial issues along with medical certificates including one from a Dr Alka Tyagi of Carnegie, attesting to treatment and a recommendation to take a break from studies for the period 18 August 2016 to 30 November 2016.

19. Evidence was submitted at hearing regarding the enrolment and attendance practices of the Career Education Consultancy Agency (CECA) and Holmes that indicates that the process of course enrolment, engaged by CECA acting on behalf of the applicant, was lacking in transparency resulting in confusion about course enrolment payment. The Tribunal has reviewed a Holmes document detailing a subject breakdown of examinations and assignments that was discussed by the applicant at hearing. The document indicates that the applicant passed all exams but was given no credit for the assignments and consequently failed. Whilst the Tribunal considers it reasonable that a student be expected to understand the practices of a particular education provider and comply with the processes of that education provider, it has some sympathy with the claim that CECA processes did not provide clarity in regard to the applicant’s payment and what it had been directed to and what courses had been covered by this payment.

20. Following further advice from CECA, the applicant then enrolled in a Graduate Diploma of Management (Learning) at the Australian School of Commerce but did not commence as his visa was cancelled prior to the commencement date.

21. The applicant has continued to consult with his parents on the status of his studies and his visa, and indicated that the family’s financial circumstances have changed. He indicated that they have the financial capacity to pay for the Graduate Diploma, have demonstrated their wish to underwrite any future financial costs, and expressed his interest in accessing the subject credits available to him from RMIT so that he can complete a post graduate degree in an endeavour tol improve his employment prospects in Pakistan.

22. The Tribunal has given careful consideration to the evidence before it and given particular regard to the applicant’s testimony at hearing that it found was particularly persuasive. The Tribunal gives some weight in favour of the applicant with regard to his completion of 7 out of 9 subjects of his MBA at RMIT.  Whilst he explained the difficulties he first faced in fulfilling the written expectations of him at RMIT, evidence before the Tribunal indicates that he addressed those concerns in a diligent and productive way, to enable him to successfully complete the subjects. The Tribunal has had regard to the mitigating circumstances that affected the applicant’s ability to study at that time and his efforts to address them.

23. The Tribunal has considered the above factors individually and cumulatively and finds that these considerations outweigh any weight given in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

24. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

25. The applicant was working full time in Pakistan in the marketing and telecommunications sector before he arrived in Australia. The purpose of him studying for a post-graduate degree, was to improve his employment opportunities.  He is an only son, and his parents have encouraged and supported him to study in Australia.  Evidence before the Tribunal indicates that they have made significant sacrifices to enable him to study in Australia. Since the financial hardships incurred, the applicant indicated that they have sold property so that they can financially support him. During the time they were involved in an acrimonious family legal dispute with extended family, they encouraged the applicant to stay away in an endeavour to protect him from possible harm.  Whilst the applicant did not claim any personal emotional hardship should his visa be cancelled, the Tribunal has carefully considered the motivation and ambition expressed by the applicant, to continue his studies. The evidentiary basis for this consideration is contained in the written submission to the Tribunal (folio 25-29) and the Tribunal’s audio recording.

26. The Tribunal has given careful consideration to the cultural, familial based expectations that are placed on the applicant along with the personal and financial sacrifices that have been made to date by the applicant and his family, to pursue post-graduate study in Australia. As the only son, the Tribunal has considered the possible expectations of him and future obligations to family.

27. The Tribunal appreciates that a cancellation of the visa would cause some emotional hardship and may impact on the applicant’s potential financial and economic capacity. The previous rapid deterioration of the applicant’s health when dealing with the cumulative issues affecting his capacity to study, indicates the significance of the affect it would potentially have on his health. Accordingly, the Tribunal gives some weight to the significance of the hardship faced compared to the significance of the period of time of the breach.

    Circumstances in which ground of cancellation arose

28. As outlined above, the applicant commenced his MBA studies at RMIT following his arrival in Australia, completing 7 out of 9 subjects successfully. Initially he encountered difficulties in successfully completing the written/assignment aspects of the course and undertook intensive workshops to improve his English comprehension and writing skills. During the last semester of his studies, the cumulative effect of poor health, difficult financial circumstances and poor agency advice as detailed above, resulted him not being in a registered course of study at the time the NOICC was received on the 21 April 2017.

29. The applicant responded to the NOICC on the 22 April 2017 with an explanatory statement and has indicated that he sought to deal with the various circumstances that arose at the time.  He has sought advice and counsel in regard to the circumstances, and the evidence before the Tribunal indicates that the advice proffered may not always have been the most considered or suitable for the circumstances experienced by the applicant at that time. Whilst it is reasonable to expect that the applicant has the capacity to appropriately assess all the information before him, the Tribunal acknowledges that not all the relevant information may have been available or evident to the applicant for consideration. The Tribunal recognises the importance of the unquestionable integrity of agencies in the advice and service provided and has carefully considered the consequences of the adoption of any advice received by the applicant.

30. The Tribunal has carefully considered all the evidence before it including the persuasive oral and written submissions provided by the applicant, the documentation presented to support the claim of mitigating circumstances and the extensive efforts of the applicant to deal with the challenging circumstances. Given the circumstances as outlined above, the Tribunal gives significant weight to the reasons provided in regard to the circumstances when the visa cancellation arose and finds that these reasons outweigh any weight given to the period of time of the breach.

    Past and present behaviour of the visa holder towards the department

31. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings.

    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

32. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

33. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

34. The Tribunal acknowledges that the applicant immediately responded to the NOICC issued by the Department in a timely way, and provided an explanatory statement the day after receiving the NOICC. The applicant has actively sought resolution of the circumstances that contributed to his enrolment problems, and when his parents were suffering severe financial hardship, he sought paid work that was in accordance with the conditions of his visa and borrowed money from a friend with the use of his credit card facilities, in an attempt to cover enrolment fees.

35. The applicant has previously worked in a professional capacity in Pakistan following his graduation in computer science and is motivated by a wish to improve his future prospects with an Australian qualification, that will distinguish him in Pakistan and advantage him with future economic and employment opportunities.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Helen Kroger
    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.