Mughal (Migration)

[2022] AATA 3866

Mughal (Migration) [2022] AATA 3866 (28 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farhan Mughal

CASE NUMBER:  2106160

HOME AFFAIRS REFERENCE(S):          BCC2017/4475593

MEMBER:Stephen Conwell

DATE:28 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the  applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

Statement made on 28 October 2022 at 6:40pm

CATCHWORDS
Migration – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – substantial compliance with condition of last substantive visa – not enrolled in registered course as condition of student visa – applied for working visa, and for current visa after department’s notice issued – student visa and associated bridging visa cancelled – focus on work and not study – wife’s work and advanced pregnancy – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 461.225, Schedule 8, condition 8202(2)(a)

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant) applied for the visa on 23 November 2017. The delegate refused to grant the visa on the basis that cl.461.225 was not met because the applicant had not complied with a condition on his last held substantive visa. 

3. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.

5. The applicant and his wife, Ms Charlotte Mughal (a New Zealand citizen) participated in the hearing by video on 25 October 2022 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant is a 29 year-old citizen of Pakistan who arrived in Australia on 24 February 2015 as the holder of a Student visa, valid to 27 March 2018.  Condition 8202 attached to this Student visa. Condition 8202 requires that the visa holder maintains enrolment in a registered course of study.

8. On 20 November 2017, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Student visa as it appeared from information in the Provider Registration and International Student Management System (PRISMS) that he had failed to enrol in a registered course of study from 27 March 2017. His apparent lack of enrolment suggested that he was in breach of paragraph 8202(2)(a) of condition 8202. The applicant was given an opportunity to comment on his lack of enrolment and to offer reasons as to why his Student visa should not be cancelled.

9. On 23 November 2017, a few days after the Department had issued its NOICC, the applicant applied for a subclass 461 visa on the basis of his spousal relationship with his New Zealand citizen spouse.  As a result of that application he was granted an associated Bridging A (Subclass 010) visa. Although he had applied for a 461 visa, the applicant remained on a Student visa with condition 8202 imposed.

10. The applicant responded in writing to the NOICC on 1 December 2017. After considering his response and all other evidence, the Department cancelled the applicant’s Student visa on 14 December 2017 for breach of condition 8202. Upon cancellation of his Student visa, the applicant’s associated Bridging A visa was subsequently cancelled.

11. On 2 September 2022 the Tribunal wrote to the applicant inviting him to provide information on which he intended to rely in support of his claim that he meets the requirements for the visa. The Tribunal requested that the information be provided by 16 September 2022 and include information about whether he had remained enrolled in a registered course as required by a condition of his TU-573 Student visa. The Tribunal stated that if the information was not provided by 16 September 2022, he would lose any entitlement to a hearing. On 7 September 2022, the Tribunal invited him to attend a hearing on 25 October 2022.

12. On 16 September 2022 the applicant responded to the Tribunal’s invitation to provide information, submitting copies of his initial messages on an online dating site with (who was later to become) his wife, details of his current business, their marriage certificate, transcripts of his previous study and refusal of a Visitor visa to his parents. He also confirmed he would attend the hearing along with his wife as a witness. Whilst the Tribunal was not entirely satisfied that the applicant had responded correctly to the Tribunal’s s.359(2) invitation, it was prepared to give the applicant ‘the benefit of the doubt’ and allowed the hearing to proceed as scheduled.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant can be said to have complied substantially with the conditions that applied to his last substantive visa.

14. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record,  the applicant’s written statement dated 12 September 2022, as well as  the oral testimonies given at the hearing.

15. The applicant told the Tribunal that he came to Australia to study towards a Bachelor of Commerce. He had already completed this study in Pakistan although he had not been awarded the degree at the time of his arrival in Australia. As he explains in his written statement,

    Later in 2015, I received my transcript with passing marks, from Pakistan for the Bachelor of Commerce exams which I appeared before coming to Australia. This was a turning point as at the time I then had to decide on my career considering I already have my Bachelor degree in Pakistan.

16. The applicant was unable to adequately explain to the Tribunal why, having completed his bachelor studies in Pakistan (albeit he was still a graduand at the time of his arrival in Australia), and having been granted a Higher Education (subclass 573) visa, he elected to enrol in a Bachelor degree in Australia, rather than pursuing a higher degree.  However that question is not germane to the issue at hand. The fact is that the applicant arrived in Australia holding a Student visa with condition 8202 attached.

17. Some months after his arrival in Australia the applicant found work with a company which offered cleaning and compliance services for kitchen flue and exhaust systems within the hospitality sector, such as cafes and restaurants.  On the strength of his work, the applicant was offered visa sponsorship by his employer. According to his written statement:

    In September 2016,I have [sic] applied for 457 Sponsorship visa with migration agent named Goldman Pintex Management in North Sydney. ….As per their advice my case was strong and that I should be getting sponsorship visa without any difficulty. That is another reason why I was hesitant to enrol in any university and my job became my first priority.

18. The applicant  explained at hearing that his hopes for being granted a  457 (temporary skilled worker) visa were kept alive by his migration agent at the time. However, having married his wife in Australia on 19 November 2017, he also applied for the 461 visa a few days later.  Having submitted applications for both an Employer Sponsored visa and a 461 visa, the applicant chose not to maintain his enrolment in studies from 27 March 2017.  

19. The Tribunal has carefully considered the evidence including the applicant’s oral testimony and written  statement. It is satisfied that having come to Australia on a Student visa, the applicant’s focus, within months of his arrival, was upon his employment and later, on the prospect of a migration pathway that it apparently offered.  He clearly states that “his job became [his] first priority.”  From late 2015 onwards, the applicant appears to have focussed his energies and attention upon his employment. From late 2016, his attention was expanded to include monitoring the progress of his 457 visa application and developing his relationship with his now wife who he married in November 2017. It is clear to the Tribunal that since his arrival in Australia in February 2015, the applicant has spent the majority of his time engaging in employment and pursuing several migration pathways as well as cultivating his relationship with his wife. There is little evidence of the applicant having engaged in the activity of study for which his Student visa was granted. It seems clear that the applicant chose not to enrol in study from 27 March 2017 for no other reason other than believing that his Employer Sponsored (457) visa application was assured of success.

20. The applicant states that as an overseas student, “…he was really struggling with the environment and education system.” However these are circumstances endured by many students and other temporary residents and therefore are not rare or unusual circumstances that outweigh his responsibilities to the visa program. By contrast he appears to have had no trouble settling into employment in Australia.

21. On the evidence, the Tribunal is not convinced that the applicant’s failure to maintain enrolment in study from 27 March 2017 were for reasons other than his focus on his employment and the offer of a migration pathway that it apparently offered to him.

22. Whilst the applicant is at liberty to pursue any migration pathways legally available to him, this does not release him from his duty to comply with conditions attaching to the visa that he actually holds.  This is a matter that falls squarely to a visa holder, whether or not he receives overly optimistic advice or simply poor advice. It is a visa holder’s responsibility to check the validity of the advice he receives and most importantly, to understand the terms and conditions of the visa granted to them. On the evidence before it, the Tribunal is not satisfied that the applicant has demonstrated that whilst he held a Student visa, that he substantially complied with visa condition 8202, which required him to maintain enrolment in a registered course of study.

23. For the reasons above, the Tribunal is not satisfied that the applicant substantially complied with condition 8202 of his last substantive visa, his Higher Education Sector Student (Temporary) (Class TU)(Subclass 573) visa.

24. Accordingly, the Tribunal is not satisfied that the applicant complied substantially with the conditions that apply or applied to the last of any substantive visas he held. There is no suggestion that the applicant has not complied with the conditions of his subsequent bridging visas.

25. Consequently the Tribunal finds that  the applicant does not satisfy the legal requirement in subclause 461.225 in Schedule 2 of the Regulations.

    MINISTERIAL INTERVENTION

26. A review Tribunal may refer a case to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines. The Department will assess the circumstances of the case and may refer the case to the Minister where it meets the Minister’s guidelines for referral. If the Department assesses that the case does not meet the Minister’s guidelines for referral, the Department will finalise the case according to these guidelines.

27. According to both the documentary evidence as well as the oral testimonies given at the hearing, the applicant’s wife, whilst she was born in New Zealand, has never lived there. Her mother returned with her to Fiji not long after her birth. The applicant’s wife is a front-line worker in the pathology sector of the allied health industry.  More importantly she is pregnant and due to give birth in mid-December 2022, which is some six weeks from the date of this decision.  Both the applicant and his wife are in Australia with their immediate families overseas – the applicant’s family being in Pakistan and his wife’s family being in Fiji.

28. Having regard to the applicant’s circumstances, in particular the evidence pertaining to the applicant’s wife never having lived in New Zealand and her advanced state of pregnancy and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.  Accordingly, the Tribunal considers that this is an appropriate matter to recommend to the Minister for exercise of the discretion pursuant to s.351 of the Act.

    decision

29. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

    Stephen Conwell
    Member