Mansoor (Migration)

[2017] AATA 2699

Mansoor (Migration) [2017] AATA 2699 (6 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asir Mohammed Mansoor

CASE NUMBER:  1611204

DIBP REFERENCE(S):  BCC2016/1701836

MEMBER:Mr S Norman

DATE:6 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2017 at 9:08am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant ceased enrolment – Lack of academic progress

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 198

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 15 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) (enrolment). 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 5 July 2017 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. The applicant lodged the below mentioned NOICC letter with the Tribunal. The following information was contained in that letter.

8. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the Student visa), on 3 October 2012. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 9 June 2016, the applicant was advised that evidence available to the delegate on the Provider Registration and International Student Management System, indicated the applicant had not been enrolled in a registered course of study since 27 April 2015. Therefore it appeared the applicant did not meet the requirements of condition 8202(2)(a) and that he did not comply with s.116(1)(b) of the Act.

9. In the applicant’s response dated 15 June 2016, he claimed he was “having physical and mental issue” (though at hearing, he said he did not obtain any treatment for his ‘mental issue’). He said he had a “back issue since before he arrived in Australia”. He said he took medication in his home country (Bangladesh) which made his back better. He said this back pain was an “on and off thing till the end of November 2012”. Though ongoing, his back pain was “really aggravated during May 2015 resulting [in] the limitation of his movements”. His mother then travelled to Australia to “take care of him”. The applicant was taking “quite a few different types of medication including the ones a doctor [had] referred to him”.  However that did not help ease his pain.  He then went to a physiotherapist for a ‘few days’ but that did not assist.  In November 2015 he was referred to a chiropractor.  After seven months of therapy he said he was “back to his normal self for good” (though at hearing he said his condition was now mainly stabilised and he attended a chiropractor less often than before). At hearing he also explained that his back pain was now able to be managed with physical exercise and or physiotherapy or attending a chiropractor (he also lodged medical evidence at hearing). He now wants to finish his degree.

10. The applicant then said “along the same timeline [his] father got [unwell] due to his kidney troubles and he had to undergo surgery”.  He said this created a “mental toll” on him (being on the applicant). The applicant also lodged various medical certificates and reports (none materially referred to treatment for claimed mental health issues).

11. When asked by the Tribunal, the applicant conceded that he understood he was to have no more than a two month gap in his enrolment in a registered course appropriate to the Higher Education Student visa he had been granted.

12. 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

13. 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. 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. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal notes that Student visas are granted for the purposes of studying and completing appropriate educational qualifications in Australia. During the visa process whereby the applicant’s Student visa application had been considered, he said he wished to eventually study a Bachelor of Information Technology at Macquarie University. 

15. When discussed at hearing, the applicant said he arrived in Australia around 13 October 2012 and since that time he had only completed one course (“General English (Elementary to Upper Intermediate”)). He said he had commenced other courses in Australia (relevant to the Higher Education Student visa he was granted), but he had not completed same. He then said that he completed two Certificate level Cookery Courses and had worked in hospitality in Australia for some time (though this work mainly ceased from around the second half of 2014 due to his back pain). After considering the evidence, the Tribunal proposes to accept the applicant’s (at least initial) intention in travelling to and residing in Australia, was for the purposes of study.

16. Regarding the extent of compliance with any conditions to which the applicant’s Student visa was granted, the Tribunal is satisfied he has breached condition 8202. Regarding the applicant’s past and present behaviour towards the Department, based on the evidence before the Tribunal I accept the applicant has not been uncooperative with the Department or the Tribunal.  

17. At hearing, the applicant said he wished to be given a second chance, and that (words to the effect) his parents had paid a lot of money for his studies. In the circumstances, the Tribunal will accept that if the applicant’s visa is cancelled he (or his family) may be subject to some financial hardship. If his visa is cancelled he will also become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, I am not satisfied he would be subject to indefinite detention and I accept he could apply for a BV to remain in the community to finalise his affairs prior to departing. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation).

18. At hearing, the applicant explained that he had back pain which had commenced in Bangladesh prior to him travelling to Australia, but it became more severe after he arrived in Australia. This is why his mother had travelled to Australia to care for him. The applicant also said his father and mother separated before 2015 and had legally divorced in early 2016. More recently, his mother had married a man in Australia and was said to have been granted a Partner visa. His father had suffered kidney problems and now did not work. The father lived in a home in Dhaka (while the father’s brother also lived in the same premises).

19. However, given the applicant had not been enrolled in a course appropriate to the Higher Education Student visa he had been granted, and for over one year prior to the issue of the NOICC letter, and given he had not completed (for all intents and purposes) any course appropriate to the degree he proposed, when asked he said he was unable to ‘settle on any particular course’ when he arrived in Australia. He also said he did not return to his home in Bangladesh (after his health deteriorated) as his migration agent/s advised him not to and to (words to the effect) ‘persevere’. Be that as it may, and after completing his English language course, the applicant had still not completed a course appropriate for the Higher Education Student visa he had been granted, since he arrived in Australia in October 2012.

20. Based on the evidence before the Tribunal, I am not satisfied there are persons in Australia whose visas would, or may, be cancelled if the applicant’s visa is cancelled. The applicant did say that his mother resided in Australia (on a visa independent to his own), but that he lived with his mother’s sister and her husband. He said (words to the effect) this ‘aunt practically raised’ him. However, the aunt and her husband had married in Bangladesh and travelled to Australia on a Skilled visa in 1998-1999 (at which time the applicant was around 5 or 6 years old). The Tribunal also notes the residence of the applicant’s aunt and uncle in Australia, is not dependent on whether the applicant’s visa is cancelled.

21. Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would be breached if the applicant’s visa is cancelled. For instance, when asked about return to Bangladesh, the applicant did not refer to any evidence that could give rise to a consideration of protection needs.

22. At hearing, the applicant did say that some of his friends had completed their studies, and he did not believe he would be able to continue his studies if he returned to Bangladesh. However, in the last more than 18 months, he claimed to have resided rent free with his aunt (though his aunt and mother would occasionally give him spending money). In that time, he said he had done ‘nothing’. The Tribunal does not accept this supports the applicant’s claim to wish to continue to study in Australia, at a level appropriate to the Higher Education Student visa he was granted.

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

    DECISION

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

    Mr S Norman
    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.