Khan (Migration)

[2018] AATA 2395

Khan (Migration) [2018] AATA 2395 (30 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saad Khan

CASE NUMBER:  1708905

HOME AFFAIRS REFERENCE(S):           BCC2017/416990

MEMBER:Tigiilagi Eteuati

DATE:30 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 30 June 2018 at 7:54pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Registered course enrolment – Unsatisfactory course progress at the Higher Education level – Enrolled in vocational courses – Vague career plans – Hardship – Family disappointment – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 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 cancelled the visa on the basis that the applicant breached the condition of his visa to remain enrolled in a registered course. 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 13 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) 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 admitted, and the Tribunal accepts, that the applicant was not enrolled in any course from 29 January 2017 until 14 March 2018.

9. 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

10. 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’

11. When the applicant arrived in Australia in February 2015 he was enrolled in a Diploma of Information Technology to be followed by a Bachelor of Information Technology. He said that he commenced the Diploma course at the beginning of 2015 but found the course too difficult and failed all four of his subjects in the first semester. He abandoned that Diploma and his enrolment in the Bachelor of Information Technology was cancelled for non-commencement of studies on 28 April 2016. The Tribunal notes that the applicant was in breach of condition 8516 from this date as he was not enrolled in a higher education course, in this case his Bachelor of Information Technology. The applicant said that he knew that it was a condition of his visa to remain enrolled in a higher education course.

12. The applicant went to a migration agent who assisted him to enrol in a Diploma of Leadership and Management. He completed this course in mid-2016 and then enrolled in an Advanced Diploma of Leadership and Management which he completed on 29 January 2017. He was not enrolled in any course from this date until 14 March 2018 when he enrolled in in three further vocational courses, this time in automotive studies. He said that he had a passion for automotive matters and wished to start up an automotive workshop in Pakistan on his return. The last of his three automotive courses is due to be completed in March 2020. If the applicant’s visa had not been cancelled it would have expired on 15 March 2018.

13. The applicant said that after he completed his advanced diploma in January 20017 a migration agent applied for him to undertake a bachelor’s degree but that no tertiary institution would offer him enrolment because he had ceased his initial information technology studies. The applicant provided no documentary evidence to support his assertion that he had applied to be enrolled in bachelor degree courses but that no institution would grant him enrolment in a bachelor course.

14. The applicant’s visa was cancelled on 18 April 2017. He was granted a bridging visa in July 2017 which did not prevent him from working or studying. Despite this, the applicant did not enrol in a registered course until March 2018.

15. The Tribunal asked the applicant whether he or his family members would suffer hardship if his visa remained cancelled. He said that he had younger brothers who would be depressed if he returned to Pakistan without a bachelor degree.

16. The Tribunal raised its concern that, because the applicant failed all four courses in his Diploma of Information Technology and that he was not able to secure enrolment in another bachelor degree course, he may not have the ability to successfully undertake a higher education course in Australia. The applicant said that he believed that he would be able to complete a bachelor’s degree but that he found information technology too difficult.

17. The Tribunal raise its concern that, because the applicant abandoned his studies leading to his Bachelor of Information Technology, enrolled in and completed two vocational courses, failed to enrol in another bachelor course and then enrolled in a further 3 vocational courses after his visa was cancelled, he may not have the desire or will to successfully undertake a higher education course in Australia. The applicant had initially told the Tribunal that he wanted to complete all three vocational courses and then begin a Bachelor of Mechanical Engineering in 2020. He later said that he intended to complete one of his three automotive courses and then enrol in a bachelor’s degree in mechanical engineering. The applicant said that his desire to study a bachelor degree was evidenced by his payment of fees in his courses and payment of migration agent fees.

18. The Tribunal finds that, given the applicant abandoned his studies leading to his bachelor of information technology, enrolled in and completed two vocational courses, failed to enrol in another bachelor course and then enrolled in a further 3 vocational courses after his visa was cancelled, the applicant does not have the will or desire to successfully undertake a higher education course in Australia.

19. The Tribunal does not accept that the applicant made any significant attempts to enrol in a bachelor degree course after he completed his advanced diploma. He has provided no documentary evidence of any attempts that he made and after July 2017 he had study and work rights. The Tribunal does not accept that no tertiary institute would enrol the applicant in a bachelor’s course or at very least, in a series of courses leading to a bachelor degree.

20. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia.

21. The Tribunal finds that the applicant’s serious breaches of conditions 8202 and the applicant’s lack of desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    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.