Mirza (Migration)

[2020] AATA 147

Mirza (Migration) [2020] AATA 147 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zaki UL Hasan Mirza

CASE NUMBER:  1826716

HOME AFFAIRS REFERENCE(S):          Bcc2018/1505264

MEMBER:Wendy Banfield

DATE:28 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2020 at 12:11pm

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 – fundamental breach of a student visa – emotional hardship – experienced life stressors – recent re-enrolment – 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 September 2018 made by a delegate of the Minister for Home Affairs 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 maintained enrolment in a course of study as required by the conditions attached to his Student visa. He did not provide any reasons to the Department as to why his visa should not be cancelled in the circumstances. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Pakistan and is currently 25 years old. He came to Australia on 2 August 2015 to study higher education. The applicant had been enrolled in a Bachelor of Business but discontinued studying after completing a Diploma of Accounting.

4. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments.

5. Prior to the hearing the applicant submitted the following evidence in support of the application for review:

   ·     Diploma of Accounting with transcript completed in September 2017;

   ·     Confirmation of Enrolment (COE) for a Bachelor of Accounting commencing 27 August 2018 and finishing 13 August 2021;

   ·     Psychologist’s report dated 3 September 2018;

   ·     Evidence of applicant’s Pakistan divorce;

   ·     Evidence of the applicant’s education in Pakistan;

   ·     IELTS English test result.

   The hearing

6. The applicant advised he came to Australia on 2 August 2015 with the intention of getting a degree in Information Technology, the same subject he had studied in his home country. The applicant changed his area of study to Accounting and was planning to pursue a degree after first completing a Diploma. He said he received a letter from the Department that required a response in 5 days but he was suffering from depression and anxiety at the time. Nevertheless the applicant claimed he gave his information to an education consultant but then received a letter cancelling his visa.

7. The applicant’s reasons for failing to maintain enrolment or continue his studies were that he wanted to marry a girl from his childhood but his mother did not agree. He had been unable to focus on his studies and in September 2017 he returned to Pakistan for a month and got married anyway. He conceded he did not study after returning to Australia. The applicant said because his mother wanted him to marry another girl, there was a possibility he would need to divorce his wife who had remained in Pakistan.

8. The applicant said he had been working doing pizza deliveries but was now being supported by family. When asked how he had spent his time during the period when he was not enrolled or studying, the applicant did not provide a direct response but said he had not been able to drive as he had a car accident in December 2017. He said he was meant to re-start his studies in February 2018 but then received an email from the Department. According to the applicant, his friends told him the correspondence would be related to his visa being about to expire.

9. Regarding any compelling reason for need to remain in Australia, the applicant said he had come to Australia to justify himself and indicated he should have replied to the Department within the 5 day timeframe. He said when he came to Australia he had a dream and did not want to return to his home country with a visa cancellation. He understood the legal consequences of cancellation including that he may be barred from re-applying for a visa.

10. The applicant submitted that he would not suffer financial hardship if his visa is cancelled but there would be emotional hardship, especially for his mother as he is the only son in the family. The applicant said he wanted to get a good job in Karachi and look after his parents.

11. 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

12. 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?

13. 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).

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

15. According to the Department’s decision record, the applicant was not enrolled to study from 16 October 2017 to 30 August 2018 when a Notice of Intention to Consider Cancellation (NOICC) was issued. During the hearing the applicant confirmed he did not study after September 2017 following a one month trip to Pakistan. 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

16. 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 Procedural Instruction ‘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

17. The applicant arrived in Australia to study a package of courses including a Diploma and Bachelor degree. The applicant commenced his studies and has completed some course since his arrival.  On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

18. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant indicated he had come to Australia to prove himself both personally and to his parents. He gave evidence that his parents had high expectations of him as he is an only son. The applicant did not want to return to his home country with a visa cancellation. The Tribunal accepts the applicant may wish to remain in Australia and continue studying but he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

19. As well as discontinuing his studies after his return from overseas in September 2017, the applicant was also in breach of condition 8516 because he had been required to study in the higher education sector. The Tribunal finds failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

20. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant advised there would be emotional hardship caused by his visa being cancelled. It was submitted this would affect his mother because the applicant is the only son in the family, he wanted to obtain qualifications in Australia and get a good job in Karachi and look after his parents. The Tribunal accepts there will be a degree of hardship caused by visa cancellation and places some weight in the applicant’s favour when considering this criterion.

21. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for 10 months. The applicant gave reasons for this which included suffering from anxiety and depression due to pressure from his parents, a marriage that was not approved of by his parents and a car accident. According to his evidence at the hearing and in a written psychologist’s report dated 3 September 2018, the applicant’s parents had high academic expectations of him and also opposed the applicant marrying a woman of his choosing, which he proceeded to do anyway. This marriage was short lived and ended in divorce. The applicant also gave evidence at the hearing (and was referred to in the psychologist’s report) that he had a car accident in December 2017. He advised the Tribunal that his only physical injuries were some tissue damage but he reported to his psychologist that the accident was serious, leading to an anxiety disorder that interfered with his everyday life.

23. The Tribunal notes the applicant did not seek help for his difficulties, particularly his mental health until 3 September 2018, after being contacted by the Department and four days after receiving a NOICC letter from the Department on 30 August 2018. If the applicant were suffering from a number of issues that were affecting his ability to continue his studies he should have contacted the Department about his situation and deferred his studies until he was in a position to resume. There is no indication he did this. It was not open to him to remain in Australia as the holder of a Student visa without studying, which is the primary purpose of the visa grant.

24. The Tribunal accepts the applicant experienced some personal problems. Nevertheless, the applicant’s response to these matters was not beyond his control. The issues faced by the applicant are part of the vicissitudes of life that many people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

25. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

26. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

27. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

30. The applicant submitted a COE for a Bachelor of Accounting at Group Colleges Australia commencing on 27 August 2018 and ending on 13 August 2021. The document states on its face “created on 31 August 2018”. While the COE shows that the applicant re-enrolled to study in August 2018 he did not provide any evidence of his progress such as an academic transcript. It also appears the applicant only re-enrolled once he became aware of the Department’s intentions regarding his visa and for this reason, the Tribunal places minimal weight on the COE.

    Conclusion

31. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.