KHAN (Migration)

[2018] AATA 5458

KHAN (Migration) [2018] AATA 5458 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Afrasyab KHAN

CASE NUMBER:  1618968

HOME AFFAIRS REFERENCE(S):           BCC2016/2957788

MEMBER:Wendy Banfield

DATE:21 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 November 2018 at 2:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling need to remain in Australia – degree of hardship – circumstances leading to the grounds for cancellation – father’s ill-health – depression following a divorce – 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 7 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that that the applicant had not been enrolled in a registered course of study from 13 October 2015 to 23 October 2016 and therefore, did not meet the requirements of condition 8202(2) attached to the visa. As the applicant did not comply with condition 8202, according to the Migration Act, the visa may be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Pakistan and is currently 27 years old. He came to Australia on 11 January 2014 to study a Master’s degree. Prior to his arrival in Australia the applicant had obtained a Bachelor of Computer Engineering degree in his home country. He is divorced with no children and has a de facto partner in Australia.

4. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Araya Preechastapornkul, the applicant’s partner. For the benefit of the witness, the Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The applicant submitted the following written evidence in support of his application for review:

   ·     References from Universal Business School dated 13 September and 21 September 2018;

   ·     Statement of Completion, Academic Transcript and related documents from Universal Business School regarding the applicant’s Master of Business Administration (MBA) qualification;

   ·     Letter from the applicant’s parents dated 22 September 2018 in support of the application for review;

   ·     Medical documentation from Pakistan for the applicant’s father;

   ·     Psychologist’s Reports dated 7 October 2016 and 25 September 2018 in the name of the applicant;

   ·     Correspondence from August and September 2018 between the applicant and an education agent regarding further study;

   ·     Written submission from the applicant dated 9 October 2018.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 applies.

   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;.

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

11. Written submissions were made to the Tribunal and the applicant and his partner gave evidence at the hearing regarding his failure to maintain enrolment. From 2 March to 25 June 2015 the applicant had been granted a deferral of his studies on compassionate grounds. He remained onshore during that period. The applicant, as well as his parents in their written statement, claims the applicant was not told about his father’s ill health in March and September 2015 but found out through his sister. The applicant said he wanted to visit but was advised not to. Conversely, the applicant’s parents have said he did not tell them about his depression and difficulties with his studies.

12. During the hearing the Tribunal asked the applicant how he had occupied himself during the relevant period when he was not studying. He said he was receiving updates from his sister about his father’s health and spent time with a family friend. He declared he was not working. The applicant and his partner were somewhat evasive about his activities when he was not enrolled or studying from 13 October 2015 to 23 October 2016. The applicant did not deny that he had not been enrolled or attending a registered course for a period of more than 12 months.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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’.

    ·     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

15. The applicant travelled to Australia as the holder of a student visa which was granted on 14 August 2014 and was valid until 15 September 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

16. In responding to the Department considering cancelling his visa the applicant claimed he wished to complete his studies in Australia. At the time the applicant stated he was enrolled in an MBA and never had any other intention except the pursuit of study in Australia. As of the date of the hearing, the evidence was that the applicant has since completed his MBA but wishes to study another Master’s program, this time a Master of Business (Enterprise Resource Planning). In a written statement dated 9 October 2018 the applicant claimed the additional degree is different to the MBA, it would be of assistance to him in getting a job in a related industry and can be applied later in his own business.

17. The Tribunal has carefully considered the evidence before it and is satisfied the applicant came to Australia to study. However, while the applicant may wish to study another post-graduate degree, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

18. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

19. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant had also provided evidence in written submissions in this regard. The applicant claimed he wanted to study an additional Master’s degree because of advancing technology and because he says it will provide better employment opportunities in future. The Tribunal is not satisfied the applicant will experience hardship if he does not study a Master of Business (Enterprise Resource Planning). He already holds a Bachelor degree in Computer Engineering and an MBA which will assist him in obtaining work in future. If the applicant felt it would have been beneficial to study a Masters with a focus other than Business Administration, he could have enrolled in the Master of Business (ERP) instead of the MBA that he completed this year.

20. The Tribunal acknowledges that the cancellation of the visa would mean that the applicant is unable to continue living with his partner in Australia and that she may have to make other living and financial arrangements as a result. A student visa granted to an individual does not encompass that person taking on responsibility for another person and as a student also, Ms Preechastapornkul is expected to support herself financially. In his written statement the applicant has stated his partner will accompany him to Pakistan when she finishes her study which is a personal matter for them to decide. The applicant’s visa cancellation may mean they are apart for a period of time while Ms Preechastapornkul completes her studies.

21. Two Psychologist’s Reports were submitted in evidence. In the Psychologist’s Report of 7 October 2016 it was reported: “Mr Afrasyab Khan said that he is determined to go back to Pakistan with the completion of his Master of Business Administration so that he can show that he was studying what he thinks is the best choice for him…” The applicant has now completed his MBA. In the report dated 25 September 2018 the applicant was described as suffering distress due to feelings of worthlessness and a lack of control about his situation in Australia.  The applicant had reported to the psychologist that he was anxious about having to return to Pakistan without substantial qualifications and would be shamed in the eyes of his younger siblings. The Tribunal finds the applicant has completed a post-graduate degree in Australia as he planned. In addition, some of the reasons presented for his mental health issues such as concerns about his parents are likely to be alleviated by his return to his home country.

22. The Tribunal is not satisfied the degree of hardship to the applicant is such that the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

23. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of more than 12 months. The applicant gave several reasons for this including his father’s ill-health, his own depression following a divorce in 2010, a “family feud” that resulted from his divorce and the applicant’s educational choices that have been contrary to his father’s wishes.

24. Medical evidence from Pakistan was submitted regarding the health of the applicant’s father. The evidence indicates the applicant’s father was admitted to hospital on two occasions in March and September 2015 suffering from myocardial infarction and pulmonary edema. From the evidence it appears he underwent various tests and treatment. The applicant’s evidence was that his parents did not tell him about these events but he learnt it from his sister. As a result, the applicant said he was depressed and unable to focus on his studies. The Tribunal considers that while his father’s health was a matter beyond his control, the circumstances in which the ground for cancellation arose was not. That is, the applicant’s decision to stay in Australia but not study was his choice. It was open to him to defer his education to a later date if he believed he should be caring for his parents.

25. In regards to his circumstances at the relevant time, the applicant has also claimed that he was depressed due to his divorce in 2010 that involved a family feud and because he had decided to study an MBA which was not what his father wanted. The applicant said he blamed himself for his father’s health issues. The Tribunal has considered the applicant’s claims about the circumstances that he says led to the cancellation of his visa but finds that while these events are unfortunate, they are circumstances in life that many people go through. The Tribunal is not satisfied the matters submitted by the applicant justify his failure to maintain enrolment for 12 months in breach of visa conditions.

26. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. The applicant was aware of his responsibility to comply with the conditions attached to his visa and he could have taken measures such as deferring his studies until he had resolved his personal matters.

    ·     past and present behaviour of the visa holder towards the department

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

29. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and in the applicant’s case is not sufficient reason for the visa to not be cancelled.

    ·     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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

32. There is no evidence before the Tribunal of any other relevant matters.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. As discussed, the Tribunal does not consider the vicissitudes of life that many people encounter should be used as justification for failure to comply with visa conditions.

34. The Tribunal concludes that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal considers the visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Wendy Banfield
    Member