Khan (Migration)

[2018] AATA 5192

Khan (Migration) [2018] AATA 5192 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Aziz Khan

CASE NUMBER:  1621006

HOME AFFAIRS REFERENCE(S):           BCC2016/3052412

MEMBER:Brendan Darcy

DATE:23 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 November 2018 at 3:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – no credible reasons for failure to maintain enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 November 2016 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 on the basis that the applicant was not complaint with paragraph 8202(2)(a) of condition 8202 and the grounds for cancelling the visa outweighed the grounds for not cancelling. 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 appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. 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

5. 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?

6. 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).

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

8. The applicant was granted a class TU subclass 573 (Higher Education) student visa on 21 May 2014 which was set to expire on the 29 November 2016. He arrived in Australia on 30 May 2014.

9. During his time in Australia, he departed and returned between 18 February 2015 and 20 March 2015 and between 18 March 2016 and 11 May 2016.

10. According to the decision record, the Provider Registration and International Student Management Systems (PRISMS) record pertaining to the applicant was not enrolled in a registered course of study since 6 October 2015.

11. As discussed in the hearing, the applicant indicated that he was enrolled in a package of courses including a Diploma of Business at ACMC and a Bachelor of Business at Charles Darwin University. The applicant claimed that he applied for and was granted a suspension his studies in early 2015 as he required surgery and 13 weeks for convalescence back in Karachi, Pakistan. The applicant further elaborated that he completed his Diploma on 8 August 2015 when he returned and that he had family reasons to explain that his enrolment in a Bachelor’s degree had been cancelled on 6 October 2015.

12. On 30 November 2017, the applicant was notified by the Department of its intention to consider cancellation of the visa on 28 October 2016, stating the applicant did not appear to be enrolled on 6 October 2015 and the applicant was not compliant with condition 8202(2).

13. The applicant responded to the invitation to comment on 17 November 2016. The statement includes the admission the applicant had not been enrolled since 6 October 2015. The applicant claimed that he was ‘struggling with the worst circumstances’ as he had issues with his family overseas and that after summer he was unable to enrol in the summer semester and then travelled back to Pakistan between 18 March 2016 and 11 May 2016 to resolve issues. The applicant claimed that he tried to enrol himself in July but there was confusing from changing courses and that he delayed and wasted time again. He states he felt ashamed of breaching those conditions. The applicant requested the delegate not to cancel his visa because the experience he was gaining in Australia’s education system is the best and he has learned so much since being an international student. The applicant wishes to complete his education so he can return after achieving something and that is I a matter of my life to complete his degree. The applicant assured the delegate he would not repeat the mistake and to provide him with another chance. The applicant claimed that he was 21 and he did not want to destroy his life and that if his visa is cancelled he and his family will suffer a serious trauma, which he thinks he is already suffering and because he wasted all the money his family gave him his life will be over. 

14. No supporting documents were included with this written response.

15. A delegate on behalf of the Minister proceeded to cancel the applicant’s student visa under review on 29 November 2016.

16. The applicant applied to have the cancellation decision reviewed by the Tribunal on 13 December 2016.

17. During the scheduled hearing for this review application, the applicant did not dispute that he had breached condition 8202 since 6 October 2015 and that did not re-enrol any further courses.

18. Noting that the applicant admitted to breaching condition 8202(2) by not being enrolled, the Tribunal finds that the applicant had not been enrolled in any course work pertaining to any certificate, diploma or degree since 6 October 2015, right up to the time of his visa was cancelled on 13 December 2016.

19. 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

20. 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’.

21. At the end of the hearing, it was discussed with the applicant that a post hearing submission may be required. On the same day, the Tribunal emailed a letter to the applicant requesting information and that it was due by 17 August 2018, including information as evidence of his paternal grandmother’s death; a property dispute between his mother and other relatives, as mentioned during the hearing; and any third party statements.

22. On 17 August 2018, the applicant request a few additional days for submissions. The request was granted on 21 August 2018 with information to be submitted by 24 August 2018.

23. No further evidence or submissions have been provided to the Tribunal regarding the cancellation of the applicant’s student visa up to and including at the time of writing his decision.

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

24. According to the decision record, the applicant iterated that he has learned so much since arriving in Australia and that the experience of the Australian education system has been amazing and that he wanted to return to his home country ‘after achieving something and it is a matter of my life now [..]’.  The delegate noted the applicant wishes to remain in Australia however he had not been enrolled since 6 October 2015 and at the date of the decision to cancel does not have an approved enrolment to study. Accordingly the delegate gave no weight in his favour under this consideration.

25. According his own testimony at the scheduled hearing, the applicant reiterated his desire to study in Australia to gain international exposure and that he wished to plan an import-export business in cars and car parts in Pakistan and that his Bachelor in Business would assist him. The applicant said that since working in Australian he has not worked in the car industry such as selling cars or car parts.

26. It is plausible that the applicant is genuinely interested in establishing an import-export business. On balance and with no evidence to the contrary, the Tribunal accepts this to be the applicant’s career ambition and that completing a Bachelor’s degree would assist him.  Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal accepts that he is a genuine student. It accordingly gives this some weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

27. The delegate noted the applicant argued that he was non-compliant with condition 8202 due to family matters but did not provide any details as to the nature of these issues or how they prevented him from studying.  The Tribunal notes that the applicant was not breached condition 8202 for about fourteen months. The Tribunal considers this significant to the question whether his visa should be reinstated. As there is no other evidence that the applicant has breached any other conditions on his student visa, the Tribunal gives this factor some weight towards the visa being not cancelled.

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

28. The delegate’s decision accepted that there may be some financial and other hardships as a result of the cancellation, despite the lack of detail in his written NOICC response.

29. During the scheduled hearing, the applicant elaborated that he was 22 years of age which was a turning point in his life and that his parents will be very disappointed if the applicant were to return to his home country without obtaining a degree and without seeing him graduate. The applicant claimed his life will end as he has failed to properly value the opportunity to study abroad and become successful. He further claimed that he could not study in Pakistan as he feared being bullied and that he it take a further four years to complete the required studies.

30. The applicant did not provide any medical information or advance that he was suffering from any psychological injuries or undergoing any treatment.  

31. Whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional hardship arising from parental disappointment, if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant hardships. Given the applicant is a relatively young person, it does not accept the applicant’s life will be over and that there are no significant hardships in returning to Pakistan to begin his studies. The Tribunal gives these hardship considerations little 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.

32. According to the decision record, the applicant provided a written explanation that he was not meeting condition 8202 attached to his student visa due to family reasons but did not provide details about the nature of these family issues which prevented him from studying and remaining enrolled.

33. The Tribunal notes that the applicant wrote:

    There were so many issues at the time i was struggling with the worst circumstances i had issues my Family overseas and after the Summer started and i couldn’t enrolled with Summer Semester and then in March I travelled back to Pakistan from 18th march to 11th May I resolved the issues and I tried to enroll myself in July intake but with the confusion for changing the course I delayed and again wasted the time.  I admit and under the breach of conditions of my Visa and I feel ashamed for breaching the conditions. (sic)

34. The applicant attempted to elaborate on these vaguely written explanations during the scheduled hearing. He claimed that his family was supporting him and his mother was a sole parent living off a rental income. He claimed his grandmother died in March 2014 but did not have a death certificate as he has not informed his family about his situation. He claims they were struggling with property issues that had arisen since his father’s 2010 death as the ownership when to his paternal grandmother. He further explained that his mother took care of the property owing to him and his siblings but there were legal challenges initiated by his aunt and uncles, following the death of his grandmother. The applicant said he did not have any documentation as evidence of this property dispute.  He also claimed that he returned to Pakistan in 2014 for surgery which he had saved himself and that when he returned to Pakistan in 2016 his mother paid the airfare.

35. In summary the applicant claimed these circumstances whereby his mother’s rental income was disrupted through a legal dispute interrupted the payment as much as 8000 dollars in outstanding tuition fees, which led to the cancellation of his enrolment in October 2015.

36. The Tribunal asked the applicant to the reasons he did not mention his grandmother’s death in his NOICC response; to which the applicant did not have a response.  The applicant was provided with an opportunity to provide additional documentary evidence to support his claims but did not provide any further information, inviting the Tribunal to consider that the applicant’s claimed extenuating circumstances had lacked considerably credibility.  It is further noted that the applicant did not give any explanation for not taking advantage of this post hearing submission, despite requesting an extension to do so.

37. In the context of the lack of documentary evidence and the lack of responsiveness to a post hearing submission, the Tribunal does not accept that applicant’s claimed circumstances, while plausible, leading to the grounds for cancellation are reliable or credible as it was reasonable for the applicant to have provided at least some compelling evidence to support his claims about his grandmother’s death or a property dispute such as a court document.  The claims were further undermined by the applicant admitting his family were able to afford his tuition fees just prior at the time of the visa’s cancellation.

38. Based on these adverse credibility findings, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control. Accordingly the Tribunal gives the evidence no weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

39. 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

40. 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

41. The Tribunal raised the delegate’s findings regarding the mandatory legal consequences of this visa remaining cancelled. 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 or even forcibly returned. The applicant may also be barred from returning to Australia for three years. The Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

42. 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

43. The applicant does not have any dependents or a spouse. He raised a concern that perhaps the situation in Karachi, his home city was not safe, although not for him personally. As the applicant has not applied for a protection visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

44. There are no other relevant consideration in this review application

    Conclusion

45. 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.

46. While there are some reasons for the Tribunal to believe that the applicant is a genuine student and that the purpose of his stay in Australia was to remain here for the purpose of a student visa, the fact remains that the applicant breached condition 8202 which is a serious matter. Furthermore the applicant did not provide any credible extenuating circumstances beyond his control leading to that breach or any convincing reasons that he would face severe or significant hardship if his student visa was not reinstated.  

47. Having considered all the evidence and arguments, the Tribunal makes the cumulative finding that the significant factors towards the visa remaining cancelled are not outweighed by the factors in favour of the visa not being cancelled.

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

    DECISION

49. 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.