Mehdi (Migration)

[2019] AATA 1014

Mehdi (Migration) [2019] AATA 1014 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Murtaza Mehdi

CASE NUMBER:  1704693

HOME AFFAIRS REFERENCE(S):           BCC2017/222499

MEMBER:Frank Russo

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 March 2019 at 2:15pm

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 – opportunity to complete course – period of non-enrolment – degree of hardship – father's illness and subsequent death – depression – financial difficulties – steps taken to mitigate the situation – decision under review set aside

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 8 March 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 the applicant had not complied with condition 8202, specifically with condition 8202(2)(a) as he was not enrolled in a registered course of study between 20 June 2016 and 22 February 2017. 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 21 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. At the hearing the applicant stated that he arrived in Australia from Pakistan on 5 February 2015 for the purpose of undertaking higher education. He stated that he was enrolled in an English course, which he completed. He then commenced a Bachelor’s degree with double majors in Management and Accounting at Group Colleges of Australia. He commenced this study in approximately July 2015 and completed three units, but told the Tribunal that he did not receive any assessments because he didn’t pay the college. He explained that the college had asked him to pay $7,500. He asked the college whether he could pay half of this, but the college refused and cancelled his enrolment as he didn’t pay the fees.

9. The applicant stated that he then went to a second college, Elite Education, where he enrolled in the Diploma of Accounting on 22 March 2016. He stated that he completed four months of this qualification before he was advised by his education consultant that he was better off enrolling in a Leadership and Management course. The applicant told the Tribunal that he commenced the Advanced Diploma of Leadership and Management at the Australasian International Academy in July 2018, which he continued to be enrolled in at the time of the hearing.

10. The applicant explained that the difficulties with his enrolments arose because his ability to study in Australia was based at the time on his father’s financial support. He told the Tribunal that his father had worked in a government role in Pakistan and he started a small business in 2015 on the side in order to support the applicant with his studies. The applicant stated that in the middle of this his father got sick and was no longer able to support him financially. His father was sick for three years and passed away in 2018. He stated that he is up to date with his fees for the Advanced Diploma of Leadership and Management and he is now getting financial support from his mother.

11. At the hearing the applicant provided the Tribunal with the following documents:

    ·His passport and driver’s licence, both issued in Pakistan, which showed that his father’s name is Purnoor Hussain;

    ·Copies of various medical records relating to Purnoor Hussain dated from August to October 2017. One of these documents, dated 18 September 2017, from Hill Park General Hospital, refers to Mr Hussain’s conditions as chronic liver disease, hypertension and renal impairment;

    ·Certificate of Proficiency in English for Academic Purposes (Upper Intermediate) issued by Metro English Collage on 9 July 2015;

    ·International Student Handbook for the Australasian International Academy.

12. Following the hearing, on 21 March 2019 the applicant provided the Tribunal with a copy of the Death Registration Certificate for his father, issued by the Government of Sindh Pakistan on 16 January 2018. This records the applicant’s father’s death on 22 December 2017.

13. The Tribunal has read and has had regard to these documents. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

14. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISM database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed. The applicant confirmed that the PRISMS enrolment record was an accurate reflection of his enrolment history.

15. However, at the hearing the applicant confirmed that he was not enrolled between 20 June 2016 and 22 February 2017 and had failed to maintain his enrolment in accordance with condition 8202.

16. 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

17. 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 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 stated at hearing that the purpose for his travel and stay in Australia is to get a better education and to improve his prospects for a better career. He stated that in Pakistan he completed higher school in ‘pre-engineering’, which he stated was the equivalent of Year 12. He stated that he completed some certificate courses in Pakistan, in Air Ticketing and Computer Management and Hardware, but otherwise did not undertake any tertiary level education in Pakistan.

19. The applicant confirmed that in the approximately four years that he has been in Australia he has not completed any qualifications, other than receiving a Certificate of Completion in English. The reasons the applicant gave for his inability to complete the qualifications he has been enrolled in are set out below, in the Tribunal’s consideration of hardship. The applicant therefore confirmed that the reason for his need to remain in Australia is to complete a qualification before he returns to Pakistan. The applicant stated that he is close to finishing his studies towards the Advanced Diploma in Leadership and Management. He confirmed that the course is approximately one-and-a-half years in duration, that he has completed over a year and is due to complete the course as a whole in August 2019. He stated at the hearing that following the completion of his current Advanced Diploma studies in August 2019 he intends to return to Pakistan because he has obligations to support his family now that his father has passed away. Before he returns to Pakistan he would like the opportunity to complete his current studies so he is able to return there with a qualification.

20. The Tribunal questioned the applicant about the statements he had made in his submission to the Department on 7 March 2017. These statements refer to his plans to study a Bachelor of Accounting at Elite Education Institute. The applicant confirmed that he has had to change his plans because of the cost of completing the degree and because of his need to return to Pakistan. The Tribunal accepts the applicant’s evidence with respect to his intentions and finds that it is supported by the documentary evidence which he provided.

21. The Tribunal finds that the applicant has continued to study during the review of his cancellation decision. I find therefore that the applicant has demonstrated his purpose as being to study, despite the periods since his arrival in Australia in 2015 when he has not been enrolled to study. There is no evidence before the Tribunal that the applicant has other purposes for his travel and stay in Australia. I give this factor some weight against cancelling the visa.

    The extent of compliance with visa conditions

22. As above, the applicant has not complied with condition 8202(2) for a considerable period of time. However, as addressed by the Tribunal in considering the degree of hardship, the applicant has provided reasons why he found it difficult to comply with this condition. There is no evidence before the Tribunal of other breaches by the applicant of his visa conditions, such as the limitations in employment hours. The applicant gave evidence at hearing that since arriving in Australia he has worked as a waiter at a function centre, where he generally will work on a Friday, Saturday and Sunday, for a maximum of 20 hours per week. Given the circumstances of hardship surrounding the applicant’s breach and his current enrolment to study, which dates from February 2018, I give this some weight against cancelling the visa.

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

23. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant said that with the death of his father he now needs to support his family. He stated that he will need to get a good job and therefore needs to obtain a qualification, which is why he does not wish to leave Australia prior to completing his current studies for an advanced diploma. In the time he has been in Australia he has not been able to obtain a qualification because of the personal circumstances surrounding his father’s illness, subsequent death. He said that he would like to obtain at least one qualification. He noted that he is not in a position to pay the fees for a full bachelor’s degree in Australia, therefore he will need to finish his studies after completing the Advanced Diploma in Marketing and Leadership.

24. I find that the continuation of the cancellation of the applicant’s Student visa will compound the cycle in which he has found himself in as a result of his father’s illness and the lack of financial support which he received as a result for the period 2016-2018. I give this some weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

25. The circumstances that led to the cancellation of the applicant’s visa have been described above. In his submission to the Department on 7 March 2017, the applicant stated he had been depressed since 10 June 2016 as his father had become sick. He also explained a situation that arose where he was late to enrol at his college. Although his college accepted his medical certificates in relation to his father’s condition, it did not allow him to enrol late. At the hearing the applicant said that the financial situation which he suddenly found himself in as a result of his father’s illness was beyond his control. At the time that his father’s illness first arose he was unemployed and unable to support himself in his studies.

26. The applicant has provided no documentary evidence with respect to him suffering depression or the complicating circumstances involving his communications with colleges about his late enrolments or financial issues. The Tribunal also notes the significant periods of time when the applicant was not enrolled to study, but found the applicant’s explanation of the financial difficulties which he was facing at the time to be believable. At the hearing the applicant gave evidence of some of the steps he took to mitigate this situation, such as approaching his college about paying half of the fees owed, but such steps were unsuccessful. Overall the Tribunal finds that there were circumstances which were beyond the applicant’s control, but due to the lack of documentary evidence supporting his attempts to fix his enrolment issues and the significant period for which he remained un-enrolled, the Tribunal gives only some weight to this consideration against cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

27. At the hearing the applicant stated that he has always behaved ‘normally’ towards the Department. The Delegate notes in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard I note the statement which the applicant gave to the Department on 7 March 2017 in response to the Department’s notice of intention to cancel the visa. The Tribunal gives some weight to this consideration in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

28. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

29. If the applicant’s Student visa is cancelled he would potentially face becoming an unlawful non-citizen and liable for detention and removal under the Act. However, the Tribunal also notes that the applicant could apply for a Bridging visa in order to remain within the community to finalise his affairs before departing Australia.

30. If the visa is cancelled the applicant would be excluded from making applications for certain types of visa in Australia, and would be unable to continue his studies. Given the circumstances as set out above, the Tribunal finds this situation would be unfair and gives some weight in favour of the visa not being cancelled.

    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

31. Not applicable.

    Any other relevant matters

32. The applicant did not raise any other relevant matters to be considered and the Tribunal weighs this consideration neither in favour nor against cancelling the visa.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Frank Russo
    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.