Mustafa (Migration)

[2024] AATA 3097

Mustafa (Migration) [2024] AATA 3097 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Usman Mustafa

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry (MARN: 1174774)

CASE NUMBER:  2316376

HOME AFFAIRS REFERENCE(S):          BCC2016/3135635

MEMBER:Gabrielle Cullen

DATE:23 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2024 at 9:59am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – lengthy period of non-enrolment – passing of a family member – 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 15 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Pakistan born on 20 September 1987 who was granted a subclass 572 Student visa on 17 April 2015 valid to 22 August 2018. That visa was subject to condition 8202.

3. The delegate on 15 November 2016 cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course. The decision record sets out that the applicant received a notice of intention to consider cancellation (NOICC) of his visa on 19 October 2016 on the basis that he did not comply with condition 8202 as he had not been enrolled in a course of study since 7 August 2015. The applicant responded to the NOICC.

4. The applicant applied for review of the delegate’s decision on 23 November 2016 and attached the decision of the Department.

5. On 5 September 2018, the Tribunal wrote the applicant a s.359(2) letter requesting transcripts and certificates as to the courses he had studied in Australia since commencing his studies in 2012. He did not respond.

6. A further letter was sent on 11 October 2018 requesting further information and the applicant responded on 25 October 2018 as outlined below.

7. The Tribunal (differently constituted) on 20 October 2018 affirmed the decision to cancel the applicant’s Class TU visa without holding a hearing.

8. On 10 October 2023, the Federal Circuit Court remitted by consent the matter on the following basis.

   The Minister accepts that the decision of the Tribunal is affected by jurisdictional error because the "invitation to provide information" sent by the Tribunal to the applicant on 5 September 2018 was not issued in accordance with s 359(2) of the Migration Act 1958 (Cth) as it requested documents rather than information: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1 at [111]. Accordingly, s 359C(1) did not apply and the Tribunal was not relieved of its obligation under s 360(1) to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The error was material because there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [33].

9. The applicant was invited to attend a hearing on 6 June 2024 but did not attend. The Tribunal dismissed the application on 6 June 2024. The applicant applied for reinstatement on medical grounds and attached a medical certificate. The Tribunal on 25 June 2024 reinstated the application.

10. The applicant attended a video hearing on 11 July 2024. His representative attended the hearing.

11. He was given until 22 July 2024 to respond to the s.359AA matter raised and to address any other concerns raised by the Tribunal. No response was received.

12. 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

13. 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. 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?

14. The applicant was granted a subclass 572 Student visa on 17 April 2015 valid to 22 August 2018. That visa was subject to condition 8202.

15. 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).

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

17. The decision record set out that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa on 19 October 2016. The Tribunal is satisfied that the NOICC was validly issued. The decision notes that based on the Provider Registration and International Student Management System (PRISMS) record the applicant had not been enrolled in a registered course since 7 August 2015.[1]

    [1] As outlined in the Department decision submitted with the Application for Review and as raised with him via s.359AA at hearing.

18. In his response to the NOICC he submitted a COE to study an Advanced Diploma of Leadership and Management from 24 October 2016[2]. He did not dispute he had not been enrolled from 7 August 2015 to 24 October 2016 in his response to the NOICC dated 31 October 2016, his submission to the Tribunal dated 25 October 2018 and at the hearing held on 11 July 2024.

    [2] The COE is dated 28 October 2016.

19. Therefore, on the evidence before it, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full‑time course of study or training from 7 August 2015 until he submitted a COE to study from 24 October 2016. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

20. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

    Consideration of the discretion to cancel the visa

21. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

22. 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.’

    Background

23. The applicant is a national of Pakistan born on 20 September 1987 who is single with no children. The PRISMS record indicates that the applicant was enrolled in an Advanced Diploma of Accounting which finished on 26 June 2015. On 13 July 2015, the applicant was due to commence a Bachelor of Business in which he was enrolled. This course was cancelled on 7 August 2015 due to non-commencement of studies.[3]

    [3] The PRISMS record was raised with him via s.359 AA at hearing.

24. In the email response to the NOICC received 31 October 2016 the applicant explained the breach as being due to the fact that his grandparents had had a traffic accident in Pakistan. His grandmother died at the scene of the accident and his grandfather was admitted to hospital for more than a month. After one and a half months he also died. The applicant was very close to his grandparents. He was in shock and distress. This was why he was not able to concentrate on his studies. He also submitted a COE to study an Advanced Diploma of Leadership and Management from 24 October 2016 to 20 April 2018.

25. The Tribunal accepts he was unable to study this course and since that time as a result of a no study condition being placed on his bridging visa following the decision to cancel his visa by the Department .

26. On 5 September 2018, the Tribunal wrote the applicant a s.359(2) letter requesting transcripts and certificates as to the courses he had studied in Australia since commencing his studies in 2012. He did not respond.

27. A further letter was sent on 11 October 2018 as follows:

    ·As previously advised, you have lost your entitlement to a hearing of the Tribunal that was scheduled for 12 October 2018 because you failed to respond to the letter sent to you dated 5 September 2018 requesting that you provide information to the Tribunal. That letter indicated that you would lose your entitlement to the hearing if you did not respond.

    ·The Tribunal, however, is providing a further opportunity for you to provide information relevant to the Tribunal’s consideration of the matter.

    ·You have previously provided the explanation that you ceased being enrolled in a registered course on 7 August 2015 because your grandparents had an accident. You have indicated that your grandmother died at the scene of the accident and that your grandfather was admitted to hospital and died one and a half months later.

    ·Please indicate when the accident took place. Please indicate and provide documentation in relation to any medical treatment you received as a result of mental health issues, such as depression, that you claim to have suffered as a result of the accident causing not to be able to study.

    ·Please indicate and provide any documentation in relation to whether you sought from the education provider offering the Bachelor of Business in which you were enrolled, requesting a deferral of the course on compassionate, compelling on medical grounds.

28. The applicant responded via his representative on  25 October 2018 and advised that the reason for the breach was that his grandparents died in Pakistan suddenly and he suffered mentally as a result. He claimed he once attended the service of Dr Night a psychiatrist. He said while he accepts the breach it was beyond his control. He did not provide supporting documentation as requested as to the medical treatment received.

29. He said the cancellation of his visa further deteriorated his psychological distress and that he has lost all hope of progressing further in his studies. He claims he could not even tell his family and socially felt an outcast and financially he was affected. He claims he has wasted several years without formally getting qualified and that this will impact on his future in the competitive job market where he is required to compete with other qualified applicants. He claims the delegate could have allowed him to continue his studies as he provided a new COE and the delegate did not sufficiently consider his mental and psychological state and ongoing grief.

30. At the hearing the applicant repeated that the breach of condition 8202 occurred as a result of the death of his grandparents. It asked him questions considered under the headings below as to whether it should exercise its discretion to or not to cancel the visa.

    The purpose of the applicant’s travel and stay in Australia and whether the applicant has a compelling need to travel or remain in Australia

31. The purpose of the visa grant was for the applicant to travel and stay in Australia to study. The applicant indicated to the Tribunal at hearing that his purpose for coming to Australia was to study accounting which would be beneficial to his future career. The evidence indicates the applicant  arrived in Australia on a subclass 572 student visa on 18 November 2011 valid to 13 April 2013 and was granted a further subclass 572 visa to 15 October 2014 and again on 17 April 2015 to 22 August 2018. The evidence indicates that since his arrival he has  completed a General English course in 2011/2012,  a  Diploma of Accounting and Advanced Diploma of Accounting from 2012  to 26 June 2015. The evidence as noted above indicates he was then  enrolled in a  Bachelor of Business from 13 July 2015 but enrolment was cancelled for non-commencement of studies on 7 August 2015.

32. While he has not provided any documentation that he successfully completed the English course, Diploma and Advanced Diploma of Accounting the Tribunal is prepared to accept his evidence at hearing that he successfully completed these courses. The Tribunal therefore accepts that the purpose of his travel and stay in Australia for the period of those courses to 26 June 2015 was to study.

33. However, for the reasons that follow it does not accept that after completing those courses his purpose of studying in Australia was or continues to be to study.

34. The Tribunal considers his lack of commencement of the Bachelor of Business on 13 July 2015 with enrolment cancelled on 7 August 2015 and lack of any enrolment until he submitted the COE to study the Advanced Diploma Leadership and Management from 24 October 2016 undermines his claim that his purpose for staying in Australia from mid-2015 onwards was to study. He has repeatedly indicated that he did not study in this period due to the mental issues associated with the death of both his grandparents. In the response to the NOICC he submitted that his grandmother died at the scene of the accident and his grandfather was admitted to hospital for more than a month but later died. He claims he was very close to his grandparents. He was in shock and distress. This was why he was not able to concentrate on his studies. In the response to the letter sent in October 2018 he claims he suffered mentally as a result. He claims he once attended the service of Dr Night a psychiatrist but no documentation of such a visit has been provided. He said while he accepts the breach it was beyond his control.

35. At hearing he repeated that he did not study due to the death of his grandparents. He said he was isolated at home and he did not study or work. He said the accident happened in July 2015 and he did not tell the education provider. He said he was in mental shock and did not realise what was going. He referred to seeing a  Doctor on one occasion. He said he did not seek deferment or compassionate leave to study from the education provider where he was enrolled to study the Bachelor of Business.

36. A letter sent by the Tribunal in October 2018 asked the applicant to provide documentation in relation to any medical treatment that he received in Australia as a result of mental health issues, such as depression, that he claims to have suffered as a result of the accident, causing him  to be unable to study. While he has indicated he saw a psychiatrist ,Dr Night, he has provided no documentation. At hearing the Tribunal questioned the lack of documentation provided.

37. The Tribunal is of the view if the applicant was suffering significant mental health issues for the reasons he claims causing him not to be able to study for fourteen months as a result of the accident suffered by his grandparents that lead to their deaths he would have sought a deferral from his education provider on medical or compassionate grounds. This is particularly so as he was aware of the process of applying for and being granted such leave as had been done so previously while studying the Diploma of Accounting on 26 September 2012, as raised by the Tribunal at hearing via s.359AA. It does not accept he was too mentally distressed to do so. While the Tribunal is dubious that he ever saw a medical professional for his mental difficulties, due to the lack of documentation provided, despite repeated requests, even if he saw Dr Night on one occasion; it is of the view that if he was that mentally distressed over a period of 14 months when he  could not study or work; he would have sought help from a medical professional on more than one occasion, if he was in Australia to study.

38. As to his enrolment in the Advanced Diploma of Leadership and Management, from October 2016, the applicant was vague and unaware as to why he enrolled in this course and not an accounting course. At hearing he claimed he wants to study accounting in Australia. It is therefore of the view he enrolled in this course in reaction to the NOICC not as he wished to study this course.

39. It accepts that enrolment in the Advanced Diploma of Leadership and Management  was cancelled as his student visa was cancelled on 15 November 2016 and he has been unable to study since that time. However, based on his vague evidence as to this enrolment it does not accept he enrolled in this course for the purposes of study.

40. He has said that he wants to study in Australia to complete his bachelor course. However, the Tribunal is of the view if this was the case he would have done so  when he was enrolled in the course. On the basis of the evidence before it, it does not accept he was too mentally distressed or suffered mental health issues which rendered him unable to study for the reasons he claims.

41. For these reasons, the Tribunal is of the view that the applicant’s purpose in staying in Australia from mid-2015 was not to study. It is of the view if he  was in Australia to study and achieve the bachelor degree he would have studied in the relevant period. His evidence as to why he now wants to study accounting was also vague and lacking in detail at hearing. The Tribunal therefore finds he continues not to be in Australia to study.

42. As to whether there is a compelling need for him to remain in Australia, he said he wishes to remain and study in Australia to complete his bachelor course. He said while there are similar courses in Pakistan they are not as legitimate, and that in Pakistan it is a competitive employment market and an Australian bachelor degree is better. The Tribunal accepts that Australian qualification are viewed as better than in Pakistan and he would be able to find a better job in Accounting with an Australian bachelor degree. The Tribunal does not view wanting to study a better course with better employment prospects as a compelling need to stay in Australia. In any event it has found above his purpose was not and is not to stay in Australia to study, including to complete a Bachelor of Business or Accounting or any similar course.

43. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

    The extent of compliance with visa conditions

44. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 7 August 2015 until when he enrolled in the Advanced Diploma of Leadership and Management to be studied from 24 October 2016. The Tribunal considers this period of 14 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

45. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his student visa.

46. Considering the lengthy period of time the applicant was not enrolled in a registered course of study, the Tribunal gives this factor weight in favour of the exercise of the Tribunal’s discretion to cancel the visa,

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

47. At hearing the applicant referred to being unable to complete his studies and attain a bachelor degree in accounting or business. He indicated that the lack of an Australian bachelor qualification would impact on his ability to obtain good employment in Pakistan or elsewhere. He said in Pakistan there is much competition and it is difficult to obtain a job without such a degree. He indicated he could obtain a Bachelor of Accounting in Pakistan but that it was not as good in obtaining a good job.

1. He said the cancellation of his visa further deteriorated his psychological distress and that he has lost all hope of progressing further in his studies. He claims he could not even tell his family and socially felt an outcast and financially he was affected. He claims he has wasted several years without formally getting qualified and that this will impact on his future in the competitive job market where he is required to compete with other qualified applicants.

2. It is accepted that Australia qualifications are more beneficial and it accepts the benefits of studying in Australia rather than Pakistan to his future career. However, the Tribunal is of the view there are study options available to him in Pakistan. In any event the Tribunal has found his purpose of staying in Australia after mid 2015 was not to study, as outlined above, so does not accept his evidence that not obtaining qualifications in Australia would result in a hardship, nor has it affected his mental health.

3. It accepts that having a visa cancelled for a person would be distressing for him and his family.

4. The Tribunal gives this low weight in favour of exercising its discretion not to cancel the visa.

   Circumstances in which the ground of cancellation arose

5. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 7 August 2015 and 24 October 2016. It notes that he only enrolled in a course of study after receiving the NOICC, which indicates enrolment was prompted by the NOICC.

6. The applicant has referred to the mental distress and mental health issues he encountered due to the death of his grandparents. Considering the applicant’s claims regarding the circumstances in which the grounds for cancellation arose while it accepts he would have been impacted by the difficulties he was facing, for the reasons outlined above it does not accept that these matters led to him suffering such mental health issues which rendered him being unable to be enrolled and study in the relevant period. As noted above, the Tribunal is of the view if he was suffering significant mental health issues for the reasons he claims causing him not to be able to study for fourteen months he would have sought a deferral from his education provider on medical or compassionate grounds. This is particularly so as he was aware of the process of applying for and being granted such leave as had been done so previously while studying the Diploma of Accounting on 26 September 2012, as raised by the Tribunal at hearing via s.359AA. It does not accept he was too mentally distressed to do so. While the Tribunal is dubious that he ever saw a medical professional for his mental difficulties, due to the lack of documentation despite repeated requests, even if he saw Dr Night on one occasion; it is of the view that if he was that mentally distressed over a period of 14 months when he  could not study or work; he would have sought help from a medical professional on more than one occasion, if he was in Australia to study.

7. On the evidence, it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa.

8. The Tribunal gives this factor neutral weight.

   Past and present behaviour of the visa holder toward the Department

9. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in exercising its discretion not to cancel the visa.

   Whether there would be any consequential cancellations under s 140

10. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.

    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

11. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

12. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

13. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act that he may not be granted a further visa for 3 years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the 3-year period. However, it is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia; however, those are also intended and legitimate consequences of cancellation.

14. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

15. When asked by the Tribunal whether he had any fear of returning to Pakistan he answered in the negative but referred to being unable to obtain a good job as he had not obtained a bachelor degree in Australia. The Tribunal has already found above that his purpose from mid-2015 was not to study. The Tribunal is therefore of the view there is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

16. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Convention on the Rights of the Child or that it would be in contravention of the Convention Against Torture.

17. The Tribunal gives this consideration neutral weight.

    Any other relevant matters

18. The Tribunal has considered the applicant’s circumstances individually and cumulatively. It is satisfied that there are limited aspects that are favourable to the applicant. The Tribunal is not satisfied that the reasons he has put forward left him unable to study and that his failure to maintain enrolment was outside his control. The Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. It notes that the cancellation of the visa is the intended consequence of breach of the relevant condition. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

19. Overall, the Tribunal considers that there are limited aspects favourable to the applicant and these do not outweigh the reasons to cancel the visa.

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

    DECISION

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

    Gabrielle Cullen
    Senior 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.