Mahmood (Migration)

[2020] AATA 478

Mahmood (Migration) [2020] AATA 478 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adil Mahmood

CASE NUMBER:  1731489

HOME AFFAIRS REFERENCE(S):          BCC2017/3610848

MEMBER:Noelle Hossen

DATE:29 January 2020

PLACE OF DECISION:  Perth

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

Statement made on 29 January 2020 at 3:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education –not enrolled in registered course – non-payment of fees – financial difficulties –family illness – study difficulties – poor academic record – lack of study commitment – extensive non-enrolment period – not genuine student – 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 7 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that it appeared that the primary purpose for holding a visa by the applicant  was not for the purpose of study and he was not or likely to be a genuine student. 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 the 17 October 2019 to give evidence and present arguments.

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. 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

9. 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’

10. The Tribunal considers that the purpose of a student visa is for the student to enable the visa holder to study in Australia. In oral evidence the applicant conceded that he had not attend the college that he was enrolled in, in 2017.He was not enrolled in a course of study from March 2017 according to the Decision of the Department.The applicant had provided consent to the Department to send electronic communication to him. He received a Notice of intention to cancel the visa on the 14 November 2017 and the notice invited him to respond in writing. The applicant requested an extension of time to respond to the Notice and the extension of time was granted by the Department.

11. The applicant arrived in Australia on the 25 October 2015.During his time in Australia the applicant did not complete any courses save and except for the initial course in Preparation for University studies.

12. He said that he was attending classes in the beginning. His family had paid some of his fees in advance. He was initially enrolled to complete a Certificate IV to prepare for University. He said that he has completed the course .He said that he did not do well in his course of accounting. He then was supposed to attend Macquarie University and complete a Bachelor in Commerce. He provided to the Tribunal a copy of his Certificate of Enrolment on the 15 October 2019.

13. The applicant was having difficulty sending information to the Tribunal in Perth so the time was extended allowing him 7 days after the hearing to provide further documents.

14. The Certificate of Enrolment that he provided did confirm that his parents had prepaid the sum of $10,300 for him to complete the Course at Sydney Institute of Technology. The total tuition fee was going to be $70,203.It was confusing in his evidence as to when exactly he stopped meeting the fees. He stated that he had failed a unit so he changed his course provider to Zenith Business academy and did not get a refund from the previous education provider. He said that he could not meet the fees. He was very upset by the fact that he did not get a refund and that his family had outlaid a lot of money towards his education to no avail.

15. It did appear that he was unable to meet the fees for both institutions, that is from July 2016.He did not produce any certificates of completion from both institutions

16. He was studying a Diploma of Business at Zenith Business academy from the 25 July 2016.He was sent a warning email from Zenith that he had to meet the outstanding fees on the 28 October 2016. He was sent an email that they were going to cancel his enrolment for non-payment. He says that he never received the email and blamed the education provider.

17. The Tribunal notes that his father became ill, after he had received the letter. He says that he did not receive notice of their intention that they would cancel his enrolment. His father became ill with a myocardial infarction and was hospitalised on the 15 January 2017.

18. The Tribunal empathises with his situation but it would appear from the evidence that he had not paid the fees prior to his father becoming ill. The Tribunal asked him why he did not make arrangements to go back to his home and he could have deferred his studies. He said that he did not have any money to go back to Pakistan.

19. The fact remains that he was having difficulties and was not paying the fees of a registered Course prior to his father becoming ill. His evidence was that he had sought help from a psychologist to deal with depression as he could not cope after he found out about his father’s illness. He says he was relying on his father to pay his fees. He did not produce the psychologists report to the Tribunal even though he was granted extra time to do so.

20. The Tribunal noted that in 4.5 years the applicant could not produce a Certificate of completion to the Tribunal of any of the Courses that he completed during that time.

21. In response to the Notice of Intention to cancel the applicant told the Tribunal that his family had invested a lot of money for his International Education and he wanted to return his investment. He wanted to have another chance to continue his studies. The Tribunal considers that it is unlikely that the applicant would be able to progress satisfactorily or be able to meet the costs of the future courses. The applicant’s poor academic record, his lack of commitment to study and his extensive period of non-enrolment weigh heavily on the Tribunal. His explanations for his difficulties give the Tribunal little reason to believe that he will commit to study. The Tribunal weighs this factor in favour of cancelling the visa.

22. The Tribunal has considered the extent of his compliance with visa conditions.

23. The Tribunal considers that the applicant’s failure , to comply with the conditions of  his student visa by not either studying or being enrolled in a course for a significant period of time after being granted his student visa is substantial.

24. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family if the visa is not granted. The applicant has no enrolments in any course for the future. Given the failure of the applicant to undertake and commit to study for such a considerable period of time since being granted his student visa the Tribunal finds that there is unlikely to be any hardship suffered by  the applicant should his student visa be cancelled.

25. The Tribunal has considered the hardship to the applicant’s family. The applicant does not have any family in Australia. There is no evidence that the applicant is supporting any other person other than himself as the applicant is not married or living with anyone.

26. The Tribunal accepts that there may be some financial hardship to his family in Pakistan. His family have paid for his education and although there is no information about their financial situation there is no doubt financial hardship will be experienced by them for the outlay. He stated that his father and brother were engineers and his father was employed by the Government in India and was also the owner of his own business .He does have an older brother who lives with the family that would be expected to help the family out financially.

27. The Tribunal has considered the circumstances in which the ground for the cancellation arose .At the time of the decision the applicant has provided the Tribunal with the following documents namely: Airline ticket showing that he did travel back to his home country for a month in June/July 2016,COE from 2015 to 2019 being the packaged course that he obtained at the commencement of his stay in Australia, Money transfers from his parents, documents regarding his father’s health issues and email sent from Zenith showing that they had his wrong email address.

28. The Tribunal has considered all of the documents as set out above and say that in spite of the evidence the Tribunal is not satisfied that the applicant was unaware that there was a possibility that his student visa would not be cancelled as he was well aware that he was not meeting the fees and that he was having difficulties with the course as he had failed a unit already.

29. The Tribunal gives little weight to the applicant’s claim that he was depressed and could not study after he found out that his father was ill. The applicant did not take steps to ensure that he was not in breach of his visa conditions.

30. The applicant has failed to provide a satisfactory answer and the reasons why he is not and has not been for many months, studying before receiving notice that his visa would be cancelled. The Tribunal does not consider the applicant to be a genuine student and weighs this factor in favour of cancelling the visa.

31. The Tribunal finds it difficult to understand why the applicant did not make any attempt to contact the Department or his education provider to inform them of his problems and seek counsel on what may be the consequences of non-compliance. The Tribunal weighs that factor in favour of cancelling the visa.

32. The Tribunal has considered whether any international obligations, including non refoulement and best interests of children as a primary consideration will be breached. There is no information before the Tribunal which indicates that the cancellation of the visa is likely to breach of Australia’s international obligations.

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

    DECISION

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

    Noelle Hossen
    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.