KHAWAR (Migration)

[2019] AATA 4176

KHAWAR (Migration) [2019] AATA 4176 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HASNAT KHAWAR

CASE NUMBER:  1909398

HOME AFFAIRS REFERENCE(S):           BCC2019/280035

MEMBER:Mark Bishop

DATE:3 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 September 2019 at 10:31am

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 – study record – poor attendance – significant period of non-enrolment – mental health issues – responsibility of visa holder – decision under review affirmed

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

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 April 2019 made by a delegate of the Minister for Home Affairs 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 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 3 September 2019.  

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a detailed history of the applicant’s enrolment record.

5. The Tribunal wrote to the applicant on 9 August 2019 and requested he provide additional documents or information that you may wish us to rely on during the hearing. The applicant provided further information to the Tribunal immediately prior to the hearing. The Tribunal summarise this material at the beginning of the hearing and discussed same with the applicant. As part of that discussion the applicant advised the Tribunal that the information had previously been provided to the Department. The Tribunal notes it is referenced in the delegate’s decision.

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.

   Does the ground for cancellation exist?

10. On 18 April 2016 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

11. On 22 March 2019 the Department issued a NOICC to the applicant by email. The delegate recorded the Department received a response on 1 April 2019. The applicant did not dispute the grounds of cancellation as set out in the NOICC. The delegate made a finding the applicant’s student visa was granted subject to condition 8202. The applicant was not enrolled in a registered course between the dates of 25 May 2018 and 28 March 2019. Accordingly the applicant did not comply with condition 8202 (2)(a). The delegate noted the applicant obtained further enrolment on 28 March 2019 after issue of the NOICC. In evidence the applicant advised he had not engaged in any study in Australia since December 2018, had not attended college since that date and presumed his enrolment in hospitality management courses had been cancelled by the education provider.

12. The delegate made a finding the applicant was not enrolled in a registered course of study between the dates of 25 May 2018 and 28 March 2019. He therefore did not comply with condition 8202. In evidence to the Tribunal the applicant confirmed this finding was correct.

13. 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).

14. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. 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’

    Consideration of discretion

16. 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

17. The applicant first arrived in Australia in April 2016. His purpose was to pursue studies in IT at Diploma level leading to a Bachelor degree. The applicant advised he had not completed any courses. The applicant advised his study record and study attendance were very poor. Each time after he commenced a course of enrolment he stopped studying after a month or so. He advised the Tribunal he had not maintained study in a series of hospitality management courses that were to commence in March 2019. The applicant advised his compelling need was that he came to Australia to study and that if he returned home without completing any courses it would be bad for his relationship with his parents.  He was only 18 when he came to Australia. The applicant advised he had experienced a number of setbacks. He advised he would not be careless in the future like he had been in the past.

18. The applicant advised if he returned to Pakistan he would re-enrol in a university in that country and pursue an alternate career. The applicant advised he would return to his parents’ home as he was an only son and would live there whilst he pursued his studies. He expressed regret over his poor attitude to study in Australia and subsequent poor outcomes.

19. The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to Pakistan after 3.5 years without any academic progress in Australia. The Tribunal is prepared to accept there may well be family disapproval. However the personal and family discomfort or embarrassment is a necessary consequence of the applicant’s continuing failure to adhere to conditions attached to his visa and engage in study.  The Tribunal is unable to conclude there is any compelling need to remain in Australia.

    The extent of compliance with visa conditions

20. The delegate made a finding the applicant was not enrolled in a registered course of study between the dates of 25 May 2018 and 28 March 2019. The applicant advised the Tribunal this finding was correct.  The delegate stated the applicant enrolled in a registered course of study after the issue of the NOICC. Obtaining further enrolment after being issued a NOICC does not negate the fact that the applicant did not comply with condition 8202(2). The applicant advised the Tribunal he had not engaged in any study in Australia from December 2018.

21. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  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)

22. The applicant explained his parents would consider him a failure. His younger sister would consider he wasted his time in Australia. The applicant advised he took time to adjust to Australian lifestyle and demands. He felt it a challenge because of his age and cultural differences, communication skills and his mother’s illness. The applicant advised he would have to start a new life in Pakistan. He would have to attend university and change his academic plans. It would be easier to remain Australia. The applicant advised there were no further hardships he could outline to the Tribunal.

23. The applicant advised the Tribunal his family place high expectations on his successful completion of an academic qualification and that returning home under such circumstances would affect his physical and mental health in the long term.

24. The Tribunal acknowledges that there may be a range of emotional and financial hardships experienced by the applicant as a result of visa cancellation, including facing family and community disappointment at the perceived failure of him not achieving an academic qualification.

25. However the purpose of the Student visa is to facilitate the holder to study in Australia temporarily. It is reasonable to expect the visa holder would necessarily be prepared to depart Australia when that period has ceased. The Tribunal gives this consideration minimal weight in favour of the applicant.

26. The applicant advised the Tribunal he had been receiving medical treatment. He provided appropriate supporting documentation. The Tribunal reviewed this information with the applicant. The applicant provided medical certificate dated 12 March 2019 that advised he had been suffering from anxiety and depression associated with post-traumatic stress associated with an accident and had been referred to a psychiatrist at Broadmeadows and should not attend a court “at this time” and should be treed by a psychiatrist prior to attending court. This medical opinion did not outline the qualifications or experience of the doctor to reach such a conclusion. It did not address attendance at court many months into the future.

27. The applicant advised the Tribunal he made an appointment to see a psychiatrist. He was advised further assessment would cost $3,000 to $4,000. He advised the Tribunal his psychiatrist could not treat him at this time because his condition “was not too bad”. He advised he was taking some medication, was feeling much better and was sleeping well. The applicant advised his seeking treatment was related to his motor vehicle accident and consequent police engagement and possible charges relating to driving without a licence. He did not provide a copy of any psychiatric report to the Tribunal. He did not provide any psychiatrist reports to the Tribunal arising from these visits  He did not provide any report that stated he might suffer from hardship if  he returned to his home country.

28. The Tribunal has considered the above information, reviewed all the written material provided by the applicant and discussed at length with the applicant issues arising from his car accident, and consequent need for medical treatment. There is insufficient evidence before the Tribunal that would enable a conclusion the applicant will suffer further or future psychiatric hardship if he should return to his home country.

    Circumstances in which ground of cancellation arose

29. The applicant advised the Tribunal he experienced a series of traumatic events which he presented as factors to be considered in the light of compelling and compassionate circumstances. He provided documents pertaining to a vehicle accident, psychiatric referral , medical certificates relating to a psychiatric referral, various police reports drug prescriptions and medical certificates to substantiate his claims. He addressed each of these mattes in relation to questions from the Tribunal.

30. The applicant advised that he strongly challenged the Australian culture and had difficulty coping with his studies because of his young age and distance from his family. He did not progress academically, failed exams and changed education provider. He claims that this situation caused him to experience stress and trauma. He got a job which he felt would give him some beneficial social interaction.

31. To add to his problematic situation he received some fines for parking and driving offences. This series of events culminated in his enrolment being cancelled in 2017. He claims that it was after this time that he re- enrolled at another institute and moved house. He had a car accident and documentation provided indicates this occurred on 13 December 2018. The applicant advised the Tribunal he did not hold a valid driver’s licence at this time and was further penalised.

32. In evidence to the Tribunal the applicant outlined his visits to a psychiatrist and advised the Tribunal he was feeling much better and now sleeping well. The applicant advised the Tribunal he was recovering well from this series of events and wished to resume his studies. He advised the Tribunal he had not engaged in any study since December 2018 and presumed his COE’s had been cancelled by his education provider. He provided a note of a future visit in October to see a psychiatrist. He advised he was not currently receiving any treatment.

33. The Tribunal acknowledges that international students may face many adjustments and challenges when studying and living in Australia. It is a reasonable expectation that any visa holder understands the conditions of a student visa and seeks assistance from the Department if required.  There is no evidence before the Tribunal that the applicant ever contacted the Department in relation to his student visa and any issues he was facing.

34. The ground for cancellation arose when the applicant first ceased enrolment with a registered education provider and the applicant has been given an adequate amount of time to rectify his enrolment status. The Tribunal considers it reasonable to expect that the visa holder was aware when he was granted the visa that it had condition 8202 imposed on it which includes that the visa holder is enrolled in a registered course. The Tribunal considers the visa holder would have been fully aware that he had indeed ceased enrolment with a registered education provider as he is a direct party to that enrolment. Therefore the Tribunal considers that he would reasonably have realised that this fact would have impacted on his eligibility to continue to hold his Student visa.

35. The fact remains that the applicant was not enrolled in a registered course of study between the dates of 25 May 2018 and 28 March 2019 and therefore has not complied with condition 8202. The Tribunal gives this consideration significant weight..

    Past and present behaviour of the visa holder towards the department

36. 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 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

37. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

38. 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

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

40. Any other relevant matters

41. The Tribunal is not aware of any other relevant matters.

42. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach of almost twelve is significant in the context of a student’s study period

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

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    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.