Motaleb (Migration)

[2019] AATA 3463

Motaleb (Migration) [2019] AATA 3463 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Samir Motaleb

CASE NUMBER:  1701454

HOME AFFAIRS REFERENCE(S):          BCC2016/3903651

MEMBER:Wendy Banfield

DATE:26 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2019 at 11:14am

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 – affected by personal challenges – failure to take reasonable steps – 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 19 January 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 was not enrolled in a course of study from 21 March 2016 to 21 December 2016 when a Notice of Intention to Consider Cancellation (NOICC) letter was issued and was therefore in breach of the conditions attached to his student visa.

   Background

3. The applicant is a citizen of Pakistan and is currently 25 years old. He was granted a Subclass 573 Student Visa on 19 May 2014 and arrived in Australia on 14 June 2014. The applicant intended to study Information Technology during his time as a student. In February 2015 the applicant returned to Pakistan to attend a wedding and was involved in an incident that led to his arrest. In August 2015 the applicant applied for a Protection Visa which was refused. The applicant’s Student Visa had been valid until 27 July 2017 but was cancelled on 19 January 2017.

4. The applicant submitted the following evidence in support of his application for review:

   ·     Certificate IV in Telecommunications Engineering Technology dated 22 June 2018;

   ·     Psychiatrist’s report dated 5 April 2017;

   ·     TAFE NSW academic transcript dated 29 January 2019;

   ·     Medical practitioner receipts/tax invoices dated 14 January, 7 March and 29 March 2017;

   ·     Specialist referral in the name of the applicant;

   ·     Prescription for medication in the name of the applicant dated 29 March 2017;

   ·     Letter from Access Student Service Centre stating the applicant has applied to study at Charles Sturt University dated 5 February 2019;

   ·     Evidence of online application to Latrobe University dated 30 January 2019;

   ·     Application to Victorian Institute of Technology dated 31 January 2019;

   ·     Copy of Magistrates Court Report from Pakistan with translation dated 18 February 2015;

   ·     Statements and medical report from Mr Imran Yousaf dated 4 February 2019;

   ·     Applicant’s Higher Secondary Certificate from Pakistan dated 15 July 2013;

   ·     Letter of Offer from Pacific College of Technology dated 14 March 2019;

   ·     Conditional Letter of Offer from Victoria University dated 15 March 2019.

5. The Tribunal has taken into account evidence that was submitted to the Department prior to the visa being cancelled. This included a statement by the applicant, medical referral to a specialist, prescription for medication and Royal Prince Alfred Hospital outpatient receipt.

6. The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments.

   The hearing

7. The applicant advised he came to Australia in 2014 to study a Bachelor of Business majoring in IT. He began the Bachelor of Business but then changed to TAFE to study a Bachelor of IT. The course was meant to run for a period of three years and the applicant claimed he completed about one year. After that the applicant faced complications in his personal life after a visit to Pakistan in 2015. The applicant had returned to his home country to attend a wedding but advised he was the subject of false allegation. This had occurred when he and his friend attended a business and stayed the night with the business owner. The applicant was later arrested and detained by police and accused of a crime.

8. Following his release, the applicant was able to return to Australia with help from a friend’s uncle. At the time the applicant was still enrolled to study but claimed he was affected by his treatment by police. He said he tried to study and did pass two units but after that he found it difficult to study. As a result of these issues, the applicant applied for a Protection Visa which was later refused. The applicant stated he still wants to study and has since completed a Certificate IV and Diploma in Telecommunications. To reach his goal the applicant said he would like to study a Bachelor of IT. According to the applicant he will be able to go back to Pakistan and obtain a good job in future. He said his legal issue is no longer a problem because of the time that has passed and the fact that the President in his home country has changed.

9. The applicant does not have family in Australia but has the support of a friend’s uncle. In Pakistan the applicant has his parents and a brother as well is a sister studying in China. The applicant said he has evidence that he is trying to get back on track with his studies. Regarding any compelling need to stay in Australia, the applicant said he does not want it to be proved that he cannot do it [study], and he also needs to provide support to his friend’s uncle in Australia who is disabled. The applicant advised he had complied with all other visa conditions but conceded he had not been enrolled to study between March and December 2016.

10. During the time he was not studying, the applicant claimed he was trying to get himself on track by meeting friends and studying by himself. The applicant said he had never been to a police station or been through anything of a similar nature and was mentally distressed. He advised he was prescribed medication by a doctor and hoped to get back to his studies. The applicant said he was supported financially by his own savings, part-time work and the support of his friend’s uncle. He said he had also undertaken a traineeship in IT while in Australia.

11. Regarding any hardship that may result from the visa being cancelled, the applicant claimed he would be mentally broken and hopeless. According to the applicant, education in the IT field in Pakistan is not as good as in Australia and he would be unable to gain the same level of knowledge in his home country. The applicant claimed that not being able to study in Australia would destroy his career and he would have no future.

12. The Tribunal invited the applicant to comment on the consequences of his visa cancelled. The applicant asked that he just be given a chance to continue his studies. He said if he is given credit for his previous studies he should be able to complete his education in two years. The Tribunal put it to the applicant that he must have been aware his visa may be cancelled if he did not continue to study. The applicant claimed he did not expect his visa to be cancelled so soon and had been hoping to be granted a Protection Visa. The applicant said he has to study as there is no other way to avoid being unlawful in Australia.

13. During the hearing the Tribunal attempted to contact the witness nominated by the applicant but there was no answer. The applicant was advised he could provide a written statement from the witness if he wished.

14. 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

15. 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?

16. 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).

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

18. The applicant did not dispute that he was not enrolled to study for a period of 9 months, from 21 March to 21 December 2016. The applicant advised he was suffering from mental distress and was unable to study at the relevant time. 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

19. 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

20. The applicant came to Australia as the holder of a Student Visa and commenced studying in the field of Business and IT. 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.

21. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant said he wants to be able to demonstrate that he is capable of studying. He said he also needs to provide support to his friend’s uncle in Australia who is disabled because his friend is not in Australia at present. A statement and medical report was submitted from Mr Imran Yousaf advising the applicant assists in his care. While the Tribunal accepts the applicant may wish to continue studying, from his evidence it appear he wants to do so primarily because he has no other option to remain in Australia. The applicant was previously hoping to be granted a Protection Visa but his application was refused. The applicant now claims he will be able to return to Pakistan in future to pursue a career because his legal issue is no longer a threat. The Tribunal is not satisfied the applicant wants to continue studying for genuine purposes. Regarding his role in assisting his friend’s uncle, student visas allow overseas students to study and progress academically; they are not granted for the purpose of providing care to another person.

22. As such, the applicant 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

23. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, 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)

24. 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.

25. The applicant claimed that if his visa is cancelled, he would be mentally broken and hopeless. He referred to the superiority of education in the IT field in Australia and stated he would be unable to gain the same level of knowledge in his home country. According to the applicant, if he is unable to resume studying in Australia he would have no career and no future. While there may be a level of financial, emotional or psychological hardship if the applicant’s visa is cancelled, the Tribunal is not satisfied it would significant, such that the visa should not be cancelled. It is open to the applicant to continue his education in IT in his home country given he has stated an intention to pursue a career in Pakistan in future.

26. 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

27. 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 a period of 9 months between March and December 2016. The applicant made submissions regarding the circumstances in which the grounds for cancellation arose. According to his evidence, the applicant had returned to Pakistan with a friend for a wedding but during his visit, he was accused of a crime, arrested and detained by police. These events were the subject of a Protection Visa application after the applicant returned to Australia which was ultimately unsuccessful. The applicant submitted medical evidence, a psychologist’s report and copies of prescriptions for medication in support of his reasons for failing to study during the relevant period. He also provided a copy of a Magistrate’s Court Report from Pakistan with translation from 18 February 2015. The Tribunal notes the medical evidence if primarily from two years after the events that the applicant claims were the reason for his failure to study. The psychiatrist’s report dated 5 April 2017 states the applicant developed an adjustment disorder with anxiety and depression as a result of the charges against him in Pakistan. It is understandable these issues caused a disturbance to the applicant, however, as stated; the assessment of him was conducted two years after the events. The applicant said that during the period when he was not studying, he tried get himself on track by meeting with friends and studying by himself, although he did not explain what he was studying at the time. The Tribunal does not accept this was an adequate response to the situation given he was in breach of visa conditions.

28. The Tribunal accepts the applicant was faced with a personal problem in 2015 as a result of charges against him in Pakistan.  Nevertheless, the applicant’s response to these matters was within his control. The issues faced by the applicant, while stressful and likely to be disruptive for a period of time, 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. It was open to him to defer his studies or seek compassionate leave in order to deal with these issues, or because of ill health but it appears this did not occur.

29. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. 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

30. 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

31. 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

32. 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

33. 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

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

    ·     any other relevant matters

35. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

36. 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 heavily 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.

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

    DECISION

38. 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.