Khan (Migration)

[2018] AATA 2180

Khan (Migration) [2018] AATA 2180 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohsin Ahmed Khan

CASE NUMBER:  1620263

DIBP REFERENCE(S):  BCC2016/3185900

MEMBER:Rachel Westaway

DATE:26 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2018 at 11:21pm

CATCHWORDS
Cancellation – Migration – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Non-enrolment in a registered course – Postponed study – Mother’s  operation – Applicant’s mental health condition – Inconsistent evidence regarding treatment – Hardship – Limited qualifications – Financial hardship –Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
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 22 November 2016 made by a delegate of the Minister for Immigration 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 Mr Khan had not complied with a condition on his 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 appeared before the Tribunal on 6 March 2018 to give evidence and present arguments.  His friend Mr Ali also gave evidence.

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. He was sent a Notice of Intention to Consider Cancellation (NOICC) on 2 November 2016.

9. In his response he confirmed that the grounds for cancellation existed. He has been hard working since childhood. He came to Australia in 2010 to complete a Certificate 3 in Automotive and a Certificate 4 leading to a Diploma in Business. He completed these and considered the next course. His friends and brother suggested a Bachelor of Business in Accounting as it is a related are of study.

10. On 25 May 2015 he heard from his brother that his mother was very sick. He was close to his mother and he wanted to see her. He planned to travel home however he had to cancel his trip because his brother told him to concentrate on his studies.

11. His mother had an operation in August 2015 and became ‘reddened’ and he was very concerned and worried. It affected him to the degree that he could not study, sleep or eat and he was overwhelmed with his study and looming exams. He felt constantly depressed.  He stated that his psychologist suggested he rest. He claims he tried to defer his course but the college required him to pay the balance of the semester and his family faced financial stress due to the medical issues faced by his mother  In October 2015 he again went to the college to ask if he could defer  but they refused again.

12. The applicant’s visa was cancelled on 22 November 2016. In applying for review of the decision, Mr Khan provided the Tribunal with a copy of the delegate’s decision.

13. The applicant appeared before the Tribunal to provide oral evidence. He confirmed that he was not enrolled in a registered course of study from August 2015 as his mother had medical issues and from that time he was upset and depressed.  He stated that around May 2015 to August 2015 he learnt of his mother’s health situation. At this point in time he was still enrolled. He struggled to concentrate on his studies. He confirmed that from 19 October 2015 his enrolment in a registered course of study ceased.

14. The applicant did not enrol in second semester of his course or subsequent semesters and he confirmed that for over twelve months he was not in a registered course of study until his visa was cancelled. He stated he failed first semester. He said he enjoyed the course.

15. 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

16. 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.

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    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

18. The applicant explained to the Tribunal that he came to Australia in 2010 to complete a Certificate 3 in Automotive studies and a Certificate 4 leading to a Diploma in Business. He completed these.  He took advice from friends and brother who suggested a Bachelor of Business (Accounting). This was mid-way through 2015. He explains that it was at this point in time he experienced problems. He stated that achieving academic qualifications from Australia was his goal and this is really the only thing he wants to do.

19. The Tribunal gives some weight to the fact that the applicant appears to have had a genuine interest and commitment to his studies up to mid-way through 2015. However the weight given to this does not outweigh the fact that the applicant had a significant breach of a condition of his visa, namely not being enrolled in a registered course for a substantial period of time. 

    circumstances in which ground of cancellation arose. 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

20. The applicant was asked a range of questions pertaining to the circumstances surrounding his non enrolment and the impact a cancellation may have on him and his family. He was provided with an opportunity to put to the Tribunal any evidence he wished.

21. He explained that he came to Australia in June 2010 from Karachi. He was nineteen and a half and he had no family here but he did have school friends and a family friend.

22. He said his mother is a house wife and his father is retired but worked for a bank. He was a Grade 2 Officer in the Accounts Department. There are four boys and one girl in Mr Khan’s family and he explained there are two brothers who are overseas in the Middle East where they have lived for 4-5 years. The applicant is the youngest of the boys.

23. Mr Khan confirmed he last travelled to Pakistan two years ago and had previously travelled twice before.   His brothers return once a year. Both brothers are married and are working. He confirmed that they were working when the applicant’s mother was unwell.

24. Mr Khan confirmed that his mother has recovered. She can now walk but previously required total bed rest. His mother had been unwell for a long time and required a double knee replacement. He stated she also had a frozen shoulder.

25. He explained that he wanted to return and visit his mother and he requested deferment of second semester studies. When asked if he had evidence of this he stated no. He said that the course provider explained that they cannot grant deferment in the middle of a semester. He wanted 2-3 weeks.  He said he was mentally upset and sick. He could not study. The Tribunal asked the applicant why he did not just return home.

26. He confirmed that his father would help finance his education but he was unable to because his mother’s operation was expensive and his father needed to use the money to pay the doctors.

27. The applicant explained he worked 20 hours per week but he did not earn enough to cover the cost of his fees. The Tribunal asked the applicant why he didn’t he return home to Pakistan rather than not pay his fees, be unenrolled and face a cancellation of his visa. After his mother’s operation he thought his father would pay and he really wanted to continue his studies.

28. The Tribunal put to the applicant that he had already told the Tribunal that his father was retired so it begs the question how he could earn money. The applicant responded by saying his father will borrow money from friends. The Tribunal put to the applicant that if he could borrow money for his son’s fees then why they didn’t borrow money for the operation. He stated that the operation was urgent and very expensive and he could not borrow all of that money as it was approximately 20,000 Pakistani lax.

29. He said that he would try and earn money in Australia and then save and pay his father back. The applicant confirmed he planned to pay 50% of the fees and then keep making payments but around the time of his mother’s operation he realised he did not have enough money for the semester.

30. The Tribunal asked why the applicant’s brothers who were working could not assist with money and he said that they had minimal capacity to pay and were married and it is hard for them.

31. Again the Tribunal asked the applicant why he simply did not return to Pakistan where he could be with his mother and he explained that he was mentally sick and didn’t know what to do. He explained that he had never had a gap in his studies. He said he wanted to enrol in the second semester and promised his parents that he will finish his bachelor degree.

32. He was asked if his had told his family and he said that he told his father he was mentally unwell and he was hoping that he could work and save to get enrolled in second semester.

33. The applicant’s father knows that his visa has been cancelled and he understands he cannot pay for school fees. He isn’t working due to his mental health. He said that he “survives hand to mouth”. He works as a food delivery driver for B3 BBQ in Brunswick. He works Monday to Thursday for a total of sixteen hours and he earns $250 per week. He said that as soon as he is mentally well and gets 20 hours he will be on a better rate and he can pay his fees.

34. The applicant explained that he had no means to pay for his fees and he was affected by his mother’s illness and these were the two key issues which led to him not being enrolled. He stated that in the past he worked for Melbourne Convention Centre to pay for his fees.

35. He explained that his sole purpose in coming to Australia was to study. He said that he has not broken any laws here. He explained that he heard the news regarding his mother in August 2015 and he was concerned she may not be able to walk again.

36. The applicant was asked about his mental health and he said he was diagnosed in September and October 2015 by a psychologist whose name was Robert. He attended around 4-5 appointments. These occurred around the time of his mother’s operation in August 2015. He said he was diagnosed with anxiety and depression. He was not prescribed any medication however he said that the psychologist suggested rest and cognitive therapies and he spoke to him about the issues he was facing. He stated that the last session was in January 2018. He said that the sessions started last year and he saw him every two to three months. He then stated that he spoke to him over the phone.

37. The Tribunal noted the letter from Mr Robert Postlethwaite dated 30 November 2017 outlining he had treated the applicant over the past year for depression and anxiety as a consequence of difficulties he has experienced with his studies. The psychologist stated that that he is likely to have his visa cancelled and he is distressed about this however he is now improving and should be in a position to attend a hearing in January 2018.

38. The applicant’s dates pertaining to his treatment were inconsistent and the Tribunal noted that he claimed he started seeing the psychologist around September 2015 when his mother was unwell. However the psychologist’s letter stated that he had only been seeing the applicant in the last twelve months. The applicant explained that he was incorrect and upset and hence confused.

39. The Tribunal has considered the factors raised by the applicant as to why he was unable to be enrolled in a registered course for twelve months. The Tribunal gives some weight to the difficulties and stress an ill parent may have on him when he is in a different country. The Tribunal gives minimal weight to the applicant’s explanation that he could not afford his fees as his father used the savings to pay for his mother’s operation and he had to work to save money. The applicant was not required to remain in Australia and could have easily elected to return to Pakistan whilst his mother was sick and especially given he could not afford the fees. This would have avoided the non-enrolment issues and subsequent cancellation. Whilst the Tribunal notes the applicant thought that the situation would rectify itself, the applicant made no attempt in the subsequent months to inform the Department and leave. Given this was an option and the applicant remained in Australia, the Tribunal gives no weight to this explanation.

40. The Tribunal notes that the applicant stated that he suffered depression which was a contributing factor in his situation. The Tribunal gives this some weight in favour of the applicant. However limited evidence was provided by the applicant and his psychologist to explain that his depression was not manageable. For example, rest and cognitive strategies were recommended to the applicant. If the applicant was unable to study he could have returned to Pakistan until which time he was better. The applicant was not so unwell that his actions and psychological state were out of his control. He made decisions to postpone study and had planned to re-enrol in the following semester. He also claimed he worked. Such planning requires a reasonable mental state and consideration.

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

41. The applicant said that a cancellation will cause him emotional hardship. He said that it will be seen as a failure. He also stated that without the ability to remain in Australia and study he has limited qualifications, only a Certificate 3 and 4 and this will not assist him in employment because he wants to work for a bank and they require employees to have a degree.

42. He said that the family will face financial hardship as his father is now retired and they do not have a source of income just a small amount of savings. They were relying on the applicant to obtain qualifications from Australia so that he can earn a good living and support his family. He said that his brothers have low paying roles and must support their own family.

43. The Tribunal accepts that a cancellation will cause some hardship on te applicant and his family. Given the significant amount of money required to save in order to pay for an education, a cancellation for the applicant means he is unable to complete his qualification in Australia. The Tribunal also appreciates that it is disappointing. The Tribunal accepts that the applicant would not be able to continue to obtain a degree in the short to medium term in Australia and that an Australian qualification is considered highly in Pakistan. However the Tribunal does not accept that the applicant would not be able to complete a degree in Pakistan and nor does it accept that the applicant would not be able to obtain employment in a bank. It is implausible to think that every bank employee requires a degree from overseas. Given this, the Tribunal does not accept that the considerations put forward by the applicant outweigh the severity of the breach in order not to cancel the visa.

    whether there would be consequential cancellations under s.140

44. The applicant has no partner is Australia and no one associated with the visa.

    the extent of compliance with visa conditions

45. He stated that he has never breached any laws in Australia and never worked beyond his visa restrictions and was a genuine student and honest. He said that he was committed to his studies and paid on time.  The Tribunal gives some weight to this but it does not outweigh the severity of the breach.

    past and present conduct of the visa holder towards the department

46. The applicant has cooperated with the Department and the Tribunal and responded to his Notice of Intention to Consider Cancellation in a timely manner. However the Tribunal expects that visa applicants conduct themselves in this manner and gives minimal weight to this given the length of the breach and the applicant’s lack of communication with the department around this period.

    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

47. If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this minimal weight.

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

48. There is nothing before the Tribunal to suggest the applicant has applied for protection or that the Tribunal should consider this.

49. any other relevant matters.

50. The applicant’s friend Mr Ali accompanied him to the Tribunal and confirmed that he knew him for approximately three years as they worked together. They were both employed as cleaners. Mr Ali explained he is waiting for TR.

51. He confirmed that he was aware his friend faced financial problems and he paid for the applicant’s accommodation and food. He said he was totally helpless. He couldn’t pay attention to study or work. He said that he did discuss the applicant’s personal circumstances with him and he did witness his situation.

52. He said that the applicant was close to his mother. Around 2015 in the middle or end his mother was sick and required an operation which was very expensive and his father was retired. He said that the applicant asked if he could pay for his enrolment fees and daily expenses and he was “thinking a lot” and alone. He confirmed that he was aware that the college would not defer his course and the witness could not afford to pay. He said that it became a self-perpetuating problem for the applicant. He said that the applicant is a fantastic person. He said that the operation was very expensive, it was around 20,000 lax.

53. The Tribunal asked the witness if he knew why the applicant did not return to Pakistan. He said that the tickets were expensive, namely $2500 for a return trip. He said that they were not wealthy, they were a middle class family and his brother told him to pay attention to his studies.

1. The applicant was offered the opportunity to provide any further considerations and he did not have anything further to say.

2. The Tribunal notes that the applicant’s friend and witness did provide further credibility to his claims and the Tribunal does give them some weight. However, notwithstanding the applicant’s family’s financial situation, his mother’s operation and the stress it caused and the applicant’s mental health issues, it does not outweigh such a significant breach.

3. The applicant stated that he had considered returning to Pakistan but his brother told him to concentrate on his studies. Whilst the cost may well have been a factor, the Tribunal does not accept that the applicant’s brothers who worked overseas could not afford an airfare for him to return home given the circumstances. Of priority is the applicant’s adherence to his visa conditions and he not only beached these, he did so over a twelve month period and did not seek advice from the Department or inform them.

4. He was still able to maintain employment albeit 20 hours per week and he was under the care of a psychologist sand he had friends. The weight given to the circumstances put forward by the applicant individually and cumulatively does not outweigh the reason not to cancel the visa given the significant period of time in which the breach occurred.

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

   DECISION

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

   Rachel Westaway
   Senior 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.