Khyyam Khan (Migration)

[2019] AATA 2551

Khyyam Khan (Migration) [2019] AATA 2551 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahzada Khyyam Khan

CASE NUMBER:  1729972

HOME AFFAIRS REFERENCE(S):           BCC2017/3335603

MEMBER:Joseph Lindsay

DATE:4 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2019 at 3:48pm

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 – circumstances in which the non-compliance occurred – relationship breakdown – mental health issues – non-payment of fees – 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 21 November 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 applicant attended the hearing before the Tribunal on 11 April 2019. The applicant was represented at the hearing. The applicant spoke to the Tribunal in English and did not require the use of an interpreter. 

3. 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

4. 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?

5. 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).

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

7. The Tribunal asked the applicant about his enrolment history in Australia. In response, the applicant indicated that when he first got his visa, he came to Adelaide to Flinders University to do a Diploma of Engineering. He did not complete the Diploma of Engineering. He did have an enrolment in a Bachelor of Engineering and then he moved to Melbourne and did a Diploma of Accounting which he completed. He then enrolled in a Bachelor of Information Technology. He indicated it was when he got the email from the Department of Immigration he enrolled in an Advanced Diploma of Management. He then indicated he was not sure if the Diploma of Engineering was actually called a Diploma of Engineering or something else.

8. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record did not exactly align with what the applicant has said about his student enrolment history. The Tribunal put information to the applicant that his Provider Registration and International Student Management System (PRISMS) record showed that he had an enrolment in a Certificate II in Security Operations, a Diploma Leadership and Management and a Bachelor of Business. The Tribunal put to the applicant that this information is relevant because it showed he may not be giving credible information to the Tribunal. The applicant requested additional time to respond and requested an adjournment of 10 minutes. When the hearing resumed, the applicant indicated that he did not talk about the Certificate II in Security Operations or the Bachelor of Business because when he got the Notice of Intent to Consider Cancellation (NOICC) from the Department he then got the enrolment in the Diploma which led to the enrolment in the Bachelor of Business (Management).

9. When the Tribunal asked the applicant why he did not tell the Tribunal about this, he said he did not commence the course and he just maybe got confused. Ultimately, in further discussion, the applicant satisfied the Tribunal that he was giving credible information to the Tribunal in respect of his student enrolment history.  

10. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 21 November 2017 indicating that he had not been enrolled in a registered course of study since 5 April 2017.

11. The applicant indicated that the relevant course he was enrolled in at the time was the Bachelor of Information Technology. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record did not exactly align with what the applicant had said. The Tribunal put information from the PRISMS record to the applicant that his enrolment for the Bachelor of Information Technology was cancelled by his provider on 24 March 2017 due to non-payment of fees. The Tribunal put information from the PRISMS record to the applicant that his enrolment in the Certificate II in Security Operations ceased on 15 March 2017.

12. The Tribunal put to the applicant that this information was relevant because it went to showing the date of the breach of condition 8202, when he actually was no longer enrolled in a registered course of study, was 24 March 2017. The Tribunal also indicated that the reason the course provider gave for cancellation of the Bachelor of Information Technology on 24 March 2017 was also relevant to the review. In response applicant indicated he did not want any additional time to respond and he did not want an adjournment.

13. The applicant indicated that his father in Pakistan incurred financial problems at the time and he could not send the applicant the money to pay the fees. The applicant indicated he went to his course provider to request an extension of time in which to pay the fees but they refused his request.

14. The Tribunal asked the applicant whether he had any written documentation showing that he had made that request to his provider; in response he indicated he had no such documentation and he verbally spoke with the enrolments person about his financial hardship.

15. The applicant indicated that he did not approach the Department to speak to them about the financial hardship he was facing.

16. In his response to the Tribunal, the applicant did not contest that he had not been enrolled in a registered course of study since 24 March 2017.

17. The Tribunal put to the applicant that he would reasonably be aware that there was a financial guarantee he was required to provide as part of a student visa and in response he said “yeah”.

18. The Tribunal put to the applicant that he would reasonably be aware that there was an obligation on him to comply with the conditions of his visa and, given he provided a financial guarantee, the Tribunal would reasonably expect he would at least notify the Department if he encountered financial difficulties. In response he indicated he was not aware that he had to tell the Department as well.

19. In respect of the date that the delegate found the applicant to be no longer enrolled in a course of study, 5 April 2017, it is apparent to the Tribunal that this is the day after the “finish” date for the course Certificate II in Security Operations and is equally apparent that the course this course was completed by the applicant on 15 March 2017.

20. Accordingly, the Tribunal does not accept that 5 April 2017 was the correct date that the applicant ceased to be enrolled in a registered course of study. 

21. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 24 March 2017 (the day the applicant’s course provider cancelled his enrolment in the Bachelor of Information Technology due to non-payment of fees). Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect of s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

22. 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 circumstances in which the ground for cancellation arose

23. The Tribunal asked the applicant what was happening to him around April 2017 that led to him not remaining enrolled. In response he indicated that at the time he was not really stable and was depressed. The applicant indicated he had a girlfriend (Fatima Ali) who he was studying with at the same course provider (Acumen) for the Diploma of Accounting. He said that he met Fatima two months after he got into the course.  Fatima was in the same class as the applicant and, like him, was also from Lahore, Pakistan. He claimed that both Fatima and himself were in a relationship but they were not living together. He said it was more a boyfriend/girlfriend type relationship. He explained that he is a Sunni Muslim and she is a Shia Muslim. He indicated that sometimes she would stay over at his house. He indicated the relationship between them started in either December 2016 or January 2017 but he was not sure. He indicated that they were in a relationship together for six months. He indicated the relationship ended in August 2017.

24. When the Tribunal asked the applicant why the relationship ended, he indicated that Fatima had been called back to Pakistan due to religious reasons, and because he was a Sunni and she was a Shia. The applicant told the Tribunal that he and Fatima had decided to get married. He indicated that they both spoke to their respective parents but neither of their parents agreed to the marriage due to the religious difference and so they did not get married. The applicant indicated that his ex-girlfriend’s parents asked her to come back to Pakistan but once she was there she was forcibly married to somebody else.

25. When the Tribunal asked the applicant how he knew that, he responded that Fatima’s sister (Emann Ali) called him from Lahore and told him.  The Tribunal asked the applicant whether she had called him or whether he had called her. In response, he indicated that after Fatima got married she had no way of communication and so she asked her sister if she could text the applicant and tell him that she had been forcefully married and would not be able to come back to Australia. However when the Tribunal asked the applicant whether he had a copy of the text message he said “not right now”. When the Tribunal asked why not, he indicated that the message was sent to an old phone he had and not his current phone.

26. The applicant indicated that he had the same mobile phone number that he had in 2017 but that he had changed handsets. The applicant indicated that Fatima had sent him the message on “WhatsApp”. In any event, the applicant did not have a record of the message to show to the Tribunal.

27. The applicant indicated he had not spoken to Fatima or had any communication with Fatima or had any photographs of Fatima or that he had any documentary information of any kind in relation to Fatima or of his alleged relationship to Fatima or her sister to show to the Tribunal.  

28. The applicant explained that when Fatima used to come to his house she would telephone her sister from there and she had spoken about the applicant to her sister. He claimed that Fatima’s sister was the only one who knew about the relationship.

29. The Tribunal asked the applicant how he knew that the message had been sent from Fatima’s sister and in response he indicated that the message included the statement “I am Fatima’s sister Emaan”. The applicant indicated he was so shocked that he just responded to the message “okay”. The applicant indicated he got the message in November 2017 after Fatima had returned to Pakistan in November 2017 and she never came back to Australia.

30. He said the last time he spoke to Fatima was in December 2017 when she was in Lahore, Pakistan. She told him she was married. He indicated she called him, but from her sister’s phone. He indicated she told him she wanted to talk to him before but when she went back to Pakistan her dad took her passport from her and the next day she was told she was getting married and she didn’t even know the guy. The applicant indicated Fatima said her phone and laptop were taken from her and she didn’t have any means of communication.

31. The Tribunal asked the applicant when he decided to get married, and in response he said “July or August”.

32. The applicant indicated he had spoken to Fatima’s parents - but only once. He telephoned her parents using “WhatsApp” and spoke to her father. He said Fatima sent a picture of the applicant to her father and told him they had been in a relationship for about six months and they wanted to get married. He said the conversation happened around August (2017) and he told her father he wanted to marry his daughter. He told him he was a Sunni. The next day she called him and was crying. She said her father was angry and said he did not want her to get married to the applicant. The applicant indicated that Fatima’s mother called her and told her this information. The applicant indicated in December 2017 Fatima telephoned him and told him her passport was taken from her, she had been forcibly married and that she could not talk to him anymore. The applicant said this was the last time he ever communicated with Fatima.

33. The Tribunal then asked the applicant what all this had to do with him stopping studying in April 2017. In response the applicant said “it was all 2016” and then he said he was confused.

34. The Tribunal put to the applicant that in the hearing he had given multiple dates referring to the year 2017 and now he was saying it was in 2016 and he said “yeah”.

35. The Tribunal put to the applicant that during the course of the hearing he had changed his evidence and that may cast doubt on his credibility and in response he said he was confused. He then indicated Fatima left him in 2016 because he was during the doing the diploma at that time. He then said “depression and all the memories”. The applicant indicated the diploma he was referring to was the Diploma of Accounting that he completed on 26 March 2017. The applicant again asserted that he completed the Diploma of Accounting on 26 March 2017.

36. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record did not align with what the applicant has said, that he completed the Diploma of Accounting on 26 March 2017. The Tribunal put to the applicant that his PRISMS record showed that the “finished” date for the Diploma of Accounting was 3 October 2016. The Tribunal put to the applicant that his PRISMS record showed another entry for a Diploma of Accounting course that was meant to commence on 4 October 2016 and finish on 6 June 2017 but that on 11 December 2015 the applicant had varied his Confirmation of Enrolment (COE) and the course was recorded as being “cancelled”. The Tribunal put to the applicant that this information was inconsistent with what he had told the Tribunal - that he completed the Diploma of Accounting on 26 March 2017. The applicant did not want additional time to respond and he did not want an adjournment.

37. In response the applicant said his Diploma of Accounting was meant to finish on 3 October 2016 but he was not with Fatima at that time and so he was depressed and as a result he indicated he was not able to study at that time but after “he talked to her and stuff” he completed his diploma anyway and he completed the Diploma of Accounting on 26 March 2017.

38. The Tribunal asked the applicant if he had any documentation to show that he completed the Diploma of Accounting on 26 March 2017 and he said “yes”. The applicant provided the Tribunal a copy of his COE for the Diploma of Accounting course finishing on 3 October 2016. The applicant also provided a certificate showing that he had completed a Diploma of Accounting at Acumen Education with the commencement date of 9 January 2017 and completion date of 26 March 2017. The certificate was issued on 13 October 2017. The applicant also provided a “statement of attainment” in respect of the Diploma of Accounting from Acumen Education dated 13 October 2017.

39. The Tribunal put to the applicant that there appeared to be a discrepancy between the information in his PRISMS record and the information he gave the Tribunal in respect of the Diploma of Accounting.

40. The applicant then indicated to the Tribunal that another reason why he did not remain enrolled was due to mental health reasons. The Tribunal referred to the psychology report dated 3 April 2019 from Randolph Montiero. The applicant indicated he had read the report the psychologist had written for him. The applicant indicated he believed the psychologist had written about his financial situation also. The applicant then claimed he told the psychologist he was not financially stable but the psychologist didn’t write this in the report.

41. The Tribunal asked the applicant when he started seeing the psychologist and in response he said “4 July 2018”.

42. The Tribunal put to the applicant that the relevant time concerned was the time he ceased to be enrolled in March 2017 but that the applicant waited until 4 July 2018 to see a psychologist. In response he said “yeah”.

43. The Tribunal asked the applicant if he thought he was suffering mental health concerns in March 2017 and he said “yes”. The Tribunal asked the applicant why he then waited until 4 July 2018 to see a psychologist. In response he said in his culture (Pakistani culture) it was not normal to see a psychologist because psychologists were just for “mad people”.

44. The Tribunal put to the applicant that it may put low weight on the psychology report because he waited until 4 July 2018 to see a psychologist, which was a very long time after he ceased to be enrolled in March 2017. The Tribunal put to the applicant that that the information he provided to the psychologist was his recollection of his account of what happened to him earlier. The Tribunal put to the applicant that his psychologist had not seen him in March 2017, to which he agreed. The Tribunal put to the applicant that the psychologist was going off what the applicant had told him happened prior to that time, and in response he said “yes”. The applicant said he was depressed because he couldn’t continue his studies due to his visa situation and he was worried that he had nothing to do and that circumstances were out of his control at that time.

45. The Tribunal asked the applicant if he had been taking prescription medication in response he said “yes”. The Tribunal asked the applicant what prescription medication he was taking, and he responded “just for relaxation”. He did not know the name of the medication he was taking. The Tribunal asked the applicant how long he had been taking the medication and he indicated he started taking the medication a month before the hearing. The applicant indicated that he took the medication twice a day but he did not know how many milligrams the dosage was.

1. The Tribunal put to the applicant that he had just told the Tribunal that he started taking prescription medication a month before the hearing date. The Tribunal asked the applicant how this information was relevant to the time he stopped studying in March 2017. In response he said it was from all the memories of his girlfriend and that as time passed he became depressed with his studies and thought he was just wasting his time. He indicated he started seeing his psychologist more and more and that he started improving, and that the psychologist told him that if he needed the medication he could start taking the medication as well.

2. The tribunal asked the applicant what the name of his general practitioner was; in response he said “Martin Hill” in Dandenong. The Tribunal put to the applicant that it may put low weight on the information that he started taking medication (for his mental health) one month before the hearing date because this information did not have any bearing in relation to the timeframe of March 2017 which was when the applicant stopped studying. The Tribunal put to the applicant that he didn’t start taking the medication before March 2017 or at the time but rather only one month before the hearing date. In response he said “all my depressions and all the tensions came”.

3. The Tribunal referred to the psychology report and noted that the psychologist indicated the applicant saw him for three sessions, but he did not identify the dates of consultation. The applicant again repeated that the first time he saw the psychologist was 4 July 2018. The applicant was very clear about this and he indicated he could remember this because this was the day before his birthday.

4. The Tribunal put to the applicant that most of the discussion on the psychology report related to the applicant’s account to the psychologist of his relationship to Fatima and the impact that the breakup of the relationship had upon him.

5. The Tribunal noted that the psychologist had conducted a “Beck” test and the score from that test classified the applicant’s symptoms in the severe range of depression. The Tribunal asked the applicant whether he still considered himself to be suffering from depression and in response he said “yes”. The applicant indicated he thought he also had anxiety.

6. The Tribunal asked the applicant whether he had a diagnosis of depression from a medical practitioner and he indicated he did not have a diagnosis of depression from a medical practitioner.

7. The Tribunal put to the applicant that he had he was saying he had no diagnosis of depression yet he had been prescribed medication, he said, for depression despite having no such diagnosis from a medical practitioner, and in response he said “yes”. The applicant then said “actually it’s not for depression it’s just for relaxation”.

8. The tribunal asked the applicant if Dr Martin Hill referred him to a psychologist and he said yes. Whilst the applicant did not have a copy of the referral letter with him at the hearing, he undertook to the tribunal to provide a copy of the referral letter to the Tribunal. As of the date of this decision this letter has not been provided to the Tribunal.  

9. The Tribunal put to the applicant that the DFAT Country Information Report for Pakistan dated 20 February 2019 indicated that there were no legal barriers in respect of the marriage between Sunni Muslims and Shia Muslims in Pakistan. In response the applicant said that he was aware that Sunni Muslims and Shia Muslims could legally marry in Pakistan, but their parents did not agree with their proposed marriage and neither of them wanted to go against their parents’ wishes.

10. After the hearing, the applicant provided several documents, including:

    a.a copy of a script for mirtazapine (15 mg) dated 27 March 2019 and signed by Dr Martin Hill.

    b.a letter dated 15 April 2019 from Randolph Monteiro indicating that the applicant had consulted Randolph Monteiro on 4 May 2018 for “anxiety/depression triggered by his relationship breakup”. Randolph Monteiro also said that after analysing the applicant’s “condition” he conducted a second session on 10 September 2018, his third session on 24 January 2019 and fourth session on 13 April 2019.

    c.a copy of the applicant’s ANZ bank statement dated from 22 February 2019 to 17 April 2019, showing that as of 17 April 2019 the applicant had $19,433.26 in his bank account and that same day $19,000 had been deposited.

    d.a copy of the applicant’s Allied Bank statement from Pakistan dated from 1 April 2019 to 17 April 2019.

11. In respect of the above, the Tribunal makes the following findings:

    ·The applicant was granted his student visa on 27 February 2015.

    ·On 24 March 2017 the applicant’s course provider cancelled the applicant’s enrolment due to non-payment of fees. 

    ·The applicant remained un-enrolled in a registered course of study for over six months until the Department provided the applicant with a NOICC.

    ·At no time did the applicant contact the Department about his situation. 

    Claims in regard to Fatima

12. In respect of the applicant’s claim regarding his relationship with Fatima, the Tribunal has some reservations that the applicant did not give the Tribunal credible information.

13. For much of the hearing, the applicant claimed the events regarding his relationship with Fatima occurred in 2017, in particular late 2017. When questioned on this, the applicant changed his evidence to claim the events occurred in 2016. The Tribunal was not satisfied with his explanation for his inconsistent evidence because he was “confused”. The applicant went into significant detail about events he claimed occurred in 2017, only to then change his evidence to claim they occurred in 2016. The Tribunal was not satisfied with his explanation for his inconsistent evidence because he then indicated the events occurred around the time he did his Diploma of Accounting. The Tribunal discussed at length the issue as to exactly when he studied and completed his Diploma of Accounting. Whilst the applicant’s PRISMS record indicated that the finish date for the Diploma of Accounting was 3 October 2016, the applicant was adamant that he completed his Diploma of Accounting in 2017 and he provided documentary evidence in support of his claim. Based on the information provided by the applicant, the Tribunal is prepared to accept that there may be an error in his PRISMS record as to precisely when he completed the Diploma of Accounting. Accordingly, the Tribunal finds that the applicant commenced his Diploma of Accounting on 9 January 2017 and completed this course on 26 March 2017 as evidenced by his Diploma of Accounting certificate issued by Acumen Education on 13 October 2017. The Tribunal also finds that the applicant also appears to have had an enrolment for the Diploma of Accounting course in 2016.

14. The Tribunal also finds that in the report from Randolph Monteiro dated 3 April 2019, Randolph Monteiro refers to the applicant recounting to him that the events concerning Fatima occurred in 2016.

15. Therefore, the Tribunal has given the applicant the benefit of the doubt and finds that his claims in respect of his relationship with Fatima are credible and give some weight to the applicant in his favour.

    Claims as regards psychological assistance

16. The Tribunal also has reservations about when precisely the applicant consulted Randolph Monteiro. In the hearing, the applicant was adamant that he first consulted on 4 July 2018. Yet in the further documentation from Randolph Monteiro dated 15 April 2019, he made no reference to any consultation on 4 July 2018 and referred to a number of other dates including 4 May 2018, 10 September 2018, 24 January 2019 and 13 April 2019.

17. The Tribunal has given the applicant the benefit of the doubt and finds that he first consulted Randolph Monteiro on 4 May 2018 and then had several other consultations with him on 10 September 2018, 24 January 2019 and 13 April 2019. The Tribunal gives some weight to the applicant’s personal reluctance about accessing assistance from a mental health professional due to pre-conceived conceptions about those who access such services. However, despite the applicant’s pre-conceived conceptions in this respect, the Tribunal finds that there was a considerable lapse of time between the time the applicant ceased to be enrolled (24 March 2017) and ultimately had his student visa cancelled by the Department (21 November 2017) and the time the applicant ultimately started to access counselling services on 4 May 2018 and accordingly the Tribunal places high weight against the applicant in respect of the finding.  

18. In respect of the report from Randolph Monteiro dated 3 April 2019, the Tribunal gives low weight in the applicant’s favour to the information in the report because the information in the report is not based on consultations that occurred in any reasonable time proximity to the emotionally difficult circumstances that occurred in regard to Fatima. The consultations occurred well after these events and in his report dated in 2019 the psychologist relays the applicant’s recollection of events he claimed occurred to him as far back as 2016. Likewise, the Tribunal gives low weight in the applicant’s favour to the applicant’s evidence that he commenced taking prescription medication with a view to improving his mental health on 27 March 2019 because this action was taken some considerable period of time after the time the applicant ceased to be enrolled (24 March 2017) and ultimately had his student visa cancelled by the Department (21 November 2017).

    Overall assessment

19. Taking into account all of the circumstances, the Tribunal does not accept that the applicant ceased to be enrolled due to circumstances beyond his control. The Tribunal places high weight against the applicant on his own admission that the reason he ceased enrolment in the Bachelor of Information Technology on 24 March 2017 was due to the fact that he did not and could not pay his course fees. Whilst the Tribunal accepts that he may have also been emotionally processing his circumstances in regard to Fatima on 24 March 2017 and afterwards, his circumstances in regard to Fatima were not the reason why he ceased to be enrolled on 24 March 2017 – it was because he did not pay his course fees as his father in Pakistan incurred financial problems at the time and he could not send the applicant the money to pay the fees. Whilst the Tribunal accepts that the applicant had some $19,000 deposited in his Australian bank account on 17 April 2019 in an effort to show he could now afford to pay his course fees, the Tribunal places low weight on this information in the applicant’s favour because he was reasonably aware that as part of holding a student visa he had given a financial guarantee that he could afford to pay his course fees and he has demonstrated that he has not been able to honour and abide by this financial guarantee.

20. In respect of the finding that the applicant remained un-enrolled in a registered course of study for over six months until the Department provided the applicant a NOICC, the Tribunal places high weight on this information against the applicant because this information demonstrates that the applicant did not actively engage with the Department when he was in breach of condition 8202 when he was reasonably aware that he was in breach of condition 8202.

21. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal places high weight on this information against the applicant in regard to this factor.

    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

22. The applicant indicated that he came to Australia to study. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

23. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

24. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

25. The applicant indicated in response that he had already wasted a lot of time, and that back in Pakistan he couldn’t get any more qualifications “because of the gap”.

26. The Tribunal puts the applicant that the DFAT Country Information Report for Pakistan dated 20 February 2019 indicated that Pakistan had a population of some 200 million people and schools and educational institutions existed in Pakistan. In response he said “it would be so hard to get an enrolment now”. He said it was a dream of his and his parents that he got a degree in Australia.

27. In respect of the above, the Tribunal accepts that the applicant may face some disappointment if his student visa was cancelled and he was required to return to his country of origin (Pakistan).

28. Based on the information in the DFAT Country Information Report for Pakistan dated 20 February 2019, the Tribunal finds that the applicant could access education services and continue his education should he return to Pakistan. The Tribunal does not accept that the applicant couldn’t get any more qualifications should he return to Pakistan.

29. In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

30. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

31. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

32. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

33. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

34. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Pakistan.

35. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

36. The Tribunal places low weight on this information in the applicant’s favour.

    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

37. The Tribunal asked the applicant if he feared anything in returning to Pakistan. In response he said he was concerned about all the pressure from his family in respect of not completing his studies. The applicant indicated he had no other concerns.

38. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

39. When the Tribunal asked the applicant whether there were any other relevant matters he wanted to raise before the Tribunal, he indicated that he just wanted to finish his degree and go back to Pakistan. The Tribunal asked the applicant what degree he wanted to finish. In response he said “the Bachelor of Business (Management)”. The applicant indicated he did not want to study information technology because his father had a business in real estate and he wanted to go into business with his father.  

40. In respect of the above, the Tribunal accepts that the applicant wanted to finish a Bachelor of Business (Management) and then go into business with his father. The Tribunal places low weight on this information in the applicant’s favour.

41. No other relevant matters were put to the Tribunal.

    Conclusion

42. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 27 February 2015.

43. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 24 March 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

44. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay

    
    

    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.