Khan (Migration)

[2018] AATA 2177

Khan (Migration) [2018] AATA 2177 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Talha Khan

CASE NUMBER:  1617904

DIBP REFERENCE(S):  BCC2016/2969982

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 11:59am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Non –enrolment in a registered course for over 12 months – Significant time period – Mental health issues – Mother’s car accident – Hardship – Family pressure – First child to study abroad – Decision under review affirmed

LEGISLATION
Migration Act 1958, s116
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 18 October 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 applicant, Mr Khan, is a citizen of Pakistan. He was granted a visa on 9 December 2014 to study in Australia.

3.   On 28 September 2016 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. It appeared that the applicant was not enrolled in a registered course. The applicant provided a statement expressing regret that he could not maintain his student visa conditions and did not attend his course due to his mental health issues. Additionally, the applicant’s statement outlines family reasons, health reasons, communication issues with his college and consultant, and his personal inexperience, contributing to the alleged breach. Around the time of receipt of the Notice of Intention to Consider Cancellation, the applicant sought a new Certificate of Enrolment (COE).

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

5.  Mr Khan applied to the Administrative Appeals Tribunal for review of the decision and supplied a copy of the delegate’s decision. The applicant appeared before the Tribunal on 13 November 2017 to give evidence and present arguments.

6.  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

7. 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?

8.  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).

9.  In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant in his submission to the delegate accepted that he was not enrolled in a registered course of study. Notwithstanding this, he provided reasons as to why the visa should not be cancelled.

10.  At hearing, the alleged breach was put to the applicant and reference was made to PRISMS records which indicated that the applicant was not in a registered course of study during the period 17 August 2015 until 28 September 2016. The applicant again confirmed that this was correct.

11.  On the evidence before the Tribunal, namely the applicant’s admission, 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 to exercise its discretion to cancel the visa.

13.  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).

14.  The Tribunal has considered the submission provided to the Department and also the evidence taken at hearing and presented to the Tribunal.

15.  The applicant provided a submission to the delegate on 29 September 2016. The submission is set out below:

I am writing this letter of support for my intention of visa cancellation.

My name is Muhammad Talha Khan. I arrived in Australia on 14 December 2014

I understand that DIAC is thinking of cancelling my visa because of my course that I didn't attend college and I am writing to ask you to consider the effect of my removal from Australia would have on my family, including my parents.

I had a lot of trouble in the past. However, I believe my difficulties were caused by my home sickness which I was suffering from in the start till for a very long time because I couldn't stable myself in Australia. When I entered Australia in the very first two months of my stay I didn't had any proper accommodation and my grandmother passed away due to her cancer which made a huge impact on my mental and health condition I was a young lad and hearing this awful news broke me in pieces because I was already suffering with so many things it took me time to hold my ground as I tried to move ahead and past this but it was hard for me cause I’m the only son in the family and I was just 19 and moving away from the family to pursue my career alone in a country where I didn't know how things work out here. I am so sorry that I couldn't maintain my student visa conditions and wasn't attending my course education because of my mental health. In June 2016 I tried to make things right for myself when I came to know about the rules and regulations but another situation came into place when my beloved mother was involved in an accident and lost her knee cap completely from her leg which shattered me and that was the news nobody wants to listen if you're living far away from family and can't even travel to see her condition because I was already in so much mud that I was finding it difficult to pull myself out of everything I was completely shellshocked and was feeling lost and this was the biggest impact I had on me and my health I was in complete depression wasn't talking much didn't know what to do how to do I was just broke by this devastating news.

I tried to contact my college every time to know about my status and enrollment in my course but they never gave me any information after even providing my CoE they couldn't look into my student number which was issued by the college itself. I moved to Melbourne in April 2015 and paid my college 1800$ for balancing my fees for my course. The day when my induction was I went in and at that day as well my college wasn't able to come out with my student number and from that day I didn't had any idea how I should go beyond this issue I was scared to take any step as I was all alone and didn't want to take any risk with my condition and with my visa. I didn’t know anybody in this country for the past 1 year 4 months who could've guided me out of this.

I know that I can change and be a better person. It would break my heart and destroy my mother and all the dreams and hopes she have with me if I am removed from Australia. My parents are also very elderly and do not have the strength to take this news and she recently recovered from her operation in which she lost her knee caps and she's the only thing I couldn't see ending her relation with her son because she means everything to me in this world. Imagine a 20 years old young boy going through all this in the first 2 years of my stay in Australia. In these 2 years I have never been involved in any wrong deeds I belong to a very good family and it's not in my roots to treat anyone with bad manners I’m a humble guy and it definitely doesn't allow me to commit any crime it's against my will to do anything like this if any of information needed for my behaviour I will provide you with it.

I have asked for my new education provider for my CoE because I just want to pursue my career I have a dream to complete my education. I request you with all my heart out to please don't take any decision on my visa I just want to complete my study fulfil my parents dream so they can be proud of me. I accept I’ve made mistakes that I didn’t solve this matter before but I had so many things on me my grandmother than my mother after that. I just request you please don't cancel my visa it's a humble request I am just waiting for my Coe to be processed and I will continue my education to the full but don’t take this dream away from me I beg you I will completely be destroyed my life will be over. I request everybody who is looking into my case please just give me some time for my CoE to be processed. I will provide with further information and documents if needed. I again request you sir/madam I've already lodged my course intake please just give some time so my CoE s can be issued I've even paid the fees and everything I'm just waiting for it to be processed.

16.  On 13 October 2016 the applicant provided the Department with photos of medical records relating to his mother’s accident.

17.  The information provided above to the delegate and 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

18.  The applicant explained to the Tribunal that he is 22 years of age. He is from Pakistan. He has been in Australia for nearly 3 years having arrived in December 2014 and his intention was to study. He completed his intermediate studies in engineering at the Comprehensive Boys College in Karachi.

19.  The applicant has three sisters, including two older and one younger. His parents are married. His father is an engineer and his mother a house wife. The applicant’s father supports him financially in Australia. The applicant’s family have not visited Australia and he has not returned.

20.  The applicant came to Australia to study. He initially enrolled in an English course and then a Bachelor of Business of which his COE was ultimately cancelled. The applicant stated that it was his education consultant in Pakistan who selected the country to which he was to move and study.

21.  The applicant confirmed he is the first person in his family to study overseas and as such they have high expectations of him and he has not told them his predicament.  

22.  The applicant stated that his father would not allow him to return to Pakistan.

23.  The Tribunal accepts that the applicant commenced his English course and finished it on 13 March 2015. Following this he was to undertake his bachelor degree which he did not commence.

24.  The Tribunal gives some weight in favour of the applicant given he did commence his studies and complete his English course, however given the significance of the period in which he was not enrolled in a registered course of study, and the fact that he did not inform the Department or his course provider, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

The extent of compliance with visa conditions

25.  There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa older 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)

26.  The applicant explained at hearing that given he is the first child to study abroad, his father has high expectations of him. He also stated that he has not told his family of his situation as his parents are not well. He also stated that he suffers from hay fever. He is worried that his parents will be angry at the situation.

27.  He explained that his mother has medical issues associated with her lungs and his father has cholesterol problems. He fears that the knowledge of his visa being cancelled will add additional pressure to his parents.

28.  In his submission to the Department, the applicant stated that it would “break my heart and destroy my mother and all the dreams and hopes she has if I am removed from Australia”. He stated that his parents are also very elderly and do not have the strength to take this news and his mother recently recovered from a knee operation and it will have a significant impact on her.

29.  The Tribunal appreciates that the cancellation of a visa would be disappointing for the applicant and his family. It further appreciates the psychological impact and the significant financial investment families make to send their children abroad.

30.  Whilst the Tribunal notes the applicant’s oral evidence pertaining to his mother’s health and also that of his father, he was unable to provide any medical evidence to support these claims. He did provide copies of X-Rays and surgery admission sheets however these do not outweigh any reason why a visa should not be cancelled given a significant breach. The Tribunal does not believe it to be unreasonable to expect the applicant to be able to provide some evidence of the claimed medical issues that make his family more vulnerable. Given that these have not been provided, the Tribunal places minimal weight on the medical issues of the applicant’s parents and considers that in excess of twelve months of not being enrolled in a registered course is a significant period of time given the purpose of the visa. The Tribunal appreciates that a cancellation would cause some hardship as acknowledged in the explanations provided by the applicant. However, the Tribunal gives more weight to the significance of the breach than the hardship potentially caused to the applicant and his family.

Circumstances in which ground of cancellation arose

31.  The applicant summarised his difficulties in his submission to the delegate and stated that he was young and alone in a strange country and did not know who to seek help from and several extraordinary circumstances arose which led to him not being enrolled in a registered course of study. At hearing the applicant provided a detailed account of the various reasons for why he was not enrolled in a registered course of study for more than twelve months.

32.  He claimed that in the first week of arriving in Australia he was kicked out of his house by the Landlord because he would not relinquish his passport. He stated that he needed to find new accommodation and this was extremely stressful.

33.  The applicant completed his English course. He had only been in Australia for three months when he heard his grandmother had passed away and this had a significant impact on him. He did not return to Pakistan because his father did not want him to come back. He stated that this had a significant impact on him. He then learnt that his mother fell from the stairs and she broke her knee cap. The applicant could not focus. He had no one to rely on for support.

34.  The Tribunal questioned the applicant about any support he may have sought around this period such as a university counsellor however he said that he did not seek support because he did not know where to go or who to go to. He said that he spoke to friends and sought help from the Pakistani community.

35.  The Tribunal asked the applicant how he managed to enrol and complete his English course yet could not enrol in his Bachelor course. The applicant attempted to pursue the same course at the same institute but in Victoria. He said he transferred to Melbourne and paid his college fees of $1800 however upon arriving the education provider could not find his student ID. This led to him being unenrolled.

36.  He attempted to contact his consultant, who was his father’s friend but he did not respond. He said he was scared and did not know what to do. Eventually his consultant made contact with him and told him that his COE had been cancelled.  His consultant called back after one month and they tried to meet face to face over a period of two weeks. The Tribunal asked the applicant if he had any evidence to support these attempts however the applicant was unable to provide anything. He stated that after three weeks of attempting to meet his consultant he gave up.

37.  The Tribunal has considered the circumstances contributing to the applicant’s non enrolment. Whilst the Tribunal appreciates that the death of a grandparent and illness affecting close family members can be a difficult time for people of any age, the applicant had a responsibility to continue studying, or alternatively, inform the department and return home if he was unable to do so.  Furthermore, whilst the Tribunal has heard the applicant’s explanation of his enrolment problems, he has provided no evidence to support this claim and could have reported this to the Department of Immigration but did not. If the Tribunal accepted this unconditionally it would still expect that the applicant inform the Department of a change in his circumstances and ensure that his immigration status was regularised. He did not do this.

38.  The Tribunal gives some weight to the applicant’s situation pertaining to the loss of his grandmother and his parent’s poor health causing some stress on his day to day circumstances. The Tribunal does not see this as a sufficient reason not to be enrolled in a registered course.

39.  Furthermore the applicant provided no evidence of his attempts to enrol in the course in Victoria or his attempts to contact his consultant which would verify his story. As such, the Tribunal gives limited weight to this reason for not being enrolled in a registered course of study. The Tribunal also considered that the applicant could have enrolled in another course in order to ensure he was not in breach of his visa conditions. Instead he ignored the situation.

40.  Given the circumstances above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of twelve months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

Past and present conduct of the visa holder towards the Department

41.  There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

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

42.  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 breached as a result of the cancellation

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

Any other relevant matters

44.  The Tribunal notes that the applicant wrote to the Department on 18 October 2016 and requested that the Department not cancel his visa. He implied it will affect his career and his “life will be over”.  He explained that although his mother had a long history of illness his family were unable to provide medical evidence.

45.  The applicant gave no indication when asked to explain and detail to the Tribunal any other concerns he may have as to general welfare should the visa be cancelled. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in Pakistan and the applicant gave no evidence to indicate that his “life would be over” if the visa was cancelled. The population of Pakistan is significant and there are many people in full time employment without an education from Australia.

46.  At the hearing the applicant asked the Tribunal to consider that he has never done anything wrong before and does not have a bad record in regards to his studies. He also stated that he is a slow learner. He said that whilst he was not enrolled in a registered course, he did nothing for the full twelve months.

47.  The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on their visa, he made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the length of the breach, namely in excess of twelve months. The fact that the applicant is a slow learner does not explain why he would not be able to remain in a registered course of study. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.

48.  The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of in excess of twelve months is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed on him and he was unable to provide any evidence of attempts to inform the Department, or his claimed contact with his consultant, nor did he attempt to enrol in another course or indeed return home. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

DECISION

49.  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.