Mehmood (Migration)

[2020] AATA 1802

Mehmood (Migration) [2020] AATA 1802 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arslan Mehmood

CASE NUMBER:  1820882

HOME AFFAIRS REFERENCE(S):          BCC2018/1057292

MEMBER:Damian Creedon

DATE:10 March 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 March 2020 at 2:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered higher level course ceased – non-commencement of studies – family bereavement – limited academic progress – applicant changed to vocational course – financial hardship – 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 18 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant’s student visa was granted on 17 February 2017.  The delegate cancelled the Applicant’s visa on the basis that the applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework[1] that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   [1] The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree. See: >

   The applicant appeared before the Tribunal on 19 November 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.

3. 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

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.

2. Relevantly, to this case, these include the ground set out in s.116(1)(b), that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Did the applicant comply with Condition 8202?

1. On 17 February 2017 the applicant was granted a Student (Class TU Subclass 500) visa with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202 requires a primary student visa holder to maintain enrolment in a registered course, making it clear that this is a continuing requirement and that a student cannot change to a non-registered course.  Clause 8202(2)(b) requires the holder to maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

2. The delegate’s decision record notes the following relevant information:

   According to the Provider Registration and International Student Management Systems (PRISMS), [the applicant] has not held enrolment in a course of study that is at the same level as or at a higher level than the course in relation to which [his] visa was granted since 25 August 2017.

3. At the hearing the applicant was given the opportunity to comment upon this information.  The applicant conceded in sworn evidence that the information in the decision record was correct.

4. Having regard to this information, the Tribunal finds that on 25 August 2017 the applicant ceased to be enrolled in a registered course that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which his visa was granted. The Tribunal finds that the applicant breached condition 8202(2)(b) of his visa.

5. 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

1. Having found that the applicant has not complied with a condition of his 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’.

Background

1. The applicant is a 31-year-old Pakistani national who first arrived in Australia on or around 26 February 2017 as the holder of a Student (TU 500) visa.

2. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival in Australia the applicant has been enrolled in, and subsequently cancelled, the following courses:

Course Name	Commencement	Cancellation	Reason
Master of Engineering	27/02/2017	03/03/2017	Non-commencement of studies
Master of Engineering	24/07/2017	31/07/2017	Student Notifies Cessation of Studies
Certificate IV in Marketing and Communication	26/02/2018	N/A	N/A
Diploma of Marketing and Communication	25/02/2019	N/A	N/A
Advanced Diploma of Marketing and Communication	24/02/2020	N/A	N/A

Circumstances in which the ground of cancellation arose.

1. The Tribunal discussed with the applicant his education history in Pakistan and his motive for undertaking studies in Australia.  The applicant stated in evidence that he had completed a Bachelors of Electrical Engineering at the University of Engineering and Technology, Lahore, Pakistan, before taking up employment with Siemens, a well-known multinational electrical and electronics company.  The applicant stated that in order to take the next step in his career with the company he was required to undertake international study and he chose to pursue a Master’s degree in engineering in Australia.

2. The applicant stated that he arrived onshore to commence his studies in February 2017, but that ‘only a few days’ after his arrival his father fell ill in Pakistan with a ‘heart condition’.  The applicant stated that upon hearing of his father’s illness he ‘went into shock’ and ‘didn’t know what to do’.  When pressed by the Tribunal as to his decision-making at this time, the applicant stated that he ‘absolutely did’ consider returning to Pakistan to be with his father, but that he wanted to try to undertake his studies; he ‘wanted a chance’ to complete his education. 

3. The applicant stated that the circumstances of his father’s health affected his ability to concentrate on his course and his ability to successfully transition to student life in Australia.  He stated that he deferred his studies to later in the year to enable him to better adjust.  Ultimately, however, his father’s situation did not improve and his father passed away on 19 September 2017.[2]

   [2] The applicant provided the Tribunal with a copy of his father’s Death Certificate, issued by the Government of Pakistan.

4. The applicant stated to the effect that his initial period onshore was difficult for him: he stated to the effect that he experienced a ‘cultural shock’ in adjusting to Australian social and study norms and in his attempts to successfully breach the language barrier.  The applicant stated to the effect that these issues negatively affected his already ‘stressed’ emotional state in dealing with his family situation at home.

5. In terms of the ‘practical’ impact upon him, the applicant stated that his financial support from his family ceased after his father’s death, and that he could not afford to continue his course at that time.  The applicant stated to the effect that he attempted to maintain enrolment in a course of study at a lower level, and had completed two semesters of study, but that he had to cease study upon the cancellation of his visa.  The applicant stated that he wishes to re-commence study at the master’s level and that he has secured the financial support of his family in order to do so.

6. The Tribunal observed the applicant in the delivery of his evidence.  The Tribunal’s assessment is that he did so candidly and with sincerity.  The Tribunal found the applicant’s consistency in the recounting of these events, and the documentary evidence he provided to corroborate them, persuasive.  The Tribunal considers that the applicant had an extremely challenging start to his study life in Australia and that the onset of his father’s ill-health, beginning shortly after his arrival onshore, and his untimely death later in 2017, were proximate and reasonable explanations for his failure to succeed in his studies at that time. 

7. Whether the applicant’s study life may have been better managed is now a matter of conjecture with the benefit of hindsight.  The Tribunal is persuaded that the circumstances that the applicant found himself in through 2017 were beyond his control and that he acted reasonably in dealing with them as they manifested.   The Tribunal places particular weight on this factor in his favour.

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

1. The applicant’s evidence to the Tribunal is that he wishes to continue his master’s degree studies in Australia.  He stated that he wishes to pursue a career in engineering in Pakistan and his choice is to continue his study in Australia.  He stated in evidence that his brother is prepared to provide financial support for his studies and that he has acquired sufficient English-language proficiency to enable him to succeed in his studies. 

2. The Tribunal does not regard this as a ‘compelling’ need, though it does disclose a reasonable motive.  In all of the circumstances the Tribunal does not consider that this factor weighs either for or against the applicant.

The extent of compliance with visa conditions

1. The applicant was responsible for a breach pertaining to his visa.  His visa was granted in May 2018 and, despite completing some of his studies, his master’s degree course was cancelled and he failed to re-enrol in a course at the same or higher AQF level.  Ultimately it is for the applicant to take personal responsibility for managing his course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling his visa on account of the applicant’s particular circumstances.

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

1. The Tribunal accepts that the applicant has invested financial resources in furthering his education in Australia.  Although he cited no particular hardships in his evidence to the Tribunal should his visa be cancelled, it was apparent from his evidence that the applicant feels a strong obligation to his family to successfully complete his education in Australia.  The Tribunal’s view is that not continuing his studies would exact a moderate psychological and emotional toll on the applicant.

2. In all of the circumstances the Tribunal weighs this factor slightly in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. The delegate noted the following in his decision record:

   There is no information before me to indicate any specific matters of relevance or adverse behaviour towards the Department by Arslan MEHMOOD.

   As such, I give some weight to this consideration for not cancelling his visa.

2. The Tribunal adopts the delegate’s conclusion and weighs this factor slightly in the applicant’s favour.

Whether there would be consequential cancellations under s.140

1. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor 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

1. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia.  Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  Finally, that the applicant will be subject to Public Interest Criterion 4013 which means he may not be granted a temporary visa for three years from the date of cancellation.

2. There is nothing to indicate the applicant would not be able to return to Pakistan.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

Conclusion

1. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal has found however that the circumstances in which the breach occurred were, ultimately, beyond his control and that he acted reasonably in dealing with them as they manifested.   The Tribunal places particular weight on these circumstances in the applicant’s favour.  On balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Damian Creedon
Member