Mustafa (Migration)

[2018] AATA 4945

Mustafa (Migration) [2018] AATA 4945 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Usman Mustafa

CASE NUMBER:  1619816

HOME AFFAIRS REFERENCE(S):           BCC2016/3135635

MEMBER:David McCulloch

DATE:29 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2018 at 9:15am

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector ) – registered course enrolment – to non-commencement of studies – hardship – psychological distress – death in family – no application for deferral of studies – decision affirmed

PRACTICE AND PROCEDURE – decision made on review

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359, 360, 363A

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 (the Act).

2. The applicant is a national of Pakistan born on 20 September 1987. The visa that has been cancelled was granted on 17 April 2015 for a stay period until 22 August 2018. That visa was subject to condition 8202.

3. On 19 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 7 August 2015. The applicant provided a written response to the NOICC. On 15 November 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   RIGHT TO A HEARING

6. The Tribunal made a written request to the applicant on 5 September 2018 to provide transcripts and certificates of attainment in relation to aspects of the applicant’s study in Australia since 2012. That request for information was issued pursuant to s.359(2) of the Act. The applicant was advised in the written request that a failure to respond would result in the applicant losing any entitlement he may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response to the request was received.

7. Section 360(3) of the Act provides that if s.359C(1) or (2) applies to the applicant then he/she is not entitled to appear before the Tribunal. Section 359C(1) provides that if the applicant is invited in writing under s.359 to give information and does not give the information before the time for giving it has passed, then the Tribunal may make a decision on the review without taking any further action to obtain the information.

8. Section 363A of the Act additionally provides that if a provision of Part 5 states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

9. The combined effect of ss.360(3) and 363A means that once the applicant’s entitlement to appear has been lost, the Tribunal is no longer permitted to hold a hearing (see Singh v MIBP [2017] FCAFC 67 (North, Bromberg and Bromwich JJ, 27 April 2017); MIMIA v Sun (2005) 146 FCR 498 at [50]; M v MIMA (2006) 155 FCR 333 at [46]).

10. The applicant through his migration agent was advised on 11 October 2018 that the Tribunal was not authorised to conduct a hearing for the reasons indicated above.

11. The Tribunal wrote to the applicant on 11 October 2018 providing an opportunity to provide information relevant to the Tribunal’s consideration of the matter in specifically enumerated respects. Details of these matters and the applicant’s response are discussed further below.

    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. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 7 August 2015.

16. The Provider Registration and International Student Management System (PRISMS) to which the applicant has access indicates that the applicant later enrolled in an Advanced Diploma of Leadership and Management which was due to commence on 24 October 2016. This course was enrolled in on 28 October 2016. Information from the education provider obtained by the Tribunal indicates that this enrolment was cancelled on 15 November 2016 due to the applicant’s visa being cancelled.

17. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

18. 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 to exercise its discretion to cancel the visa.

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 of the Act (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

21. PRISMS 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.

22. In the email response to the NOICC 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.

23. The letter sent to the applicant by the Tribunal after the applicant lost the entitlement to the hearing sought relevant information. The letter asked the applicant to provide information as to when the accident involving his grandparents took place. It 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 the applicant not to be able to study.

24. The letter sent to the applicant also asked whether he sought from the education provider offering the Bachelor of Business in which he was enrolled, a deferral of the course on compassionate, compelling or medical grounds and to provide any relevant documentation.

25. In the response provided by the applicant, no response to these specific questions was provided nor was any related documentation provided.

26. The response provided on behalf of the applicant to the letter reiterates the shock the applicant suffered after the accident causing the death of the applicant’s grandparents, including the applicant obtaining treatment from a psychiatrist. The difficulties caused him not to be able to study. However, it is submitted that the applicant should have sought professional help to overcome his grief.

27. If the applicant was suffering significant mental health issues causing him not to be able to study as a result of the accident suffered by his grandparents and their deaths, the appropriate course would have been for the applicant to have sought a deferral from his education provider on medical or compassionate grounds. The applicant has failed to respond to a specific request to provide information in this respect. The Tribunal is not satisfied that the applicant took any relevant steps in this regard.

28. In the circumstances of the applicant taking no steps in this respect, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control to explain his failure to be enrolled. There is a specific mechanism that the applicant failed to avail himself of which would have allowed the applicant to deal with his mental health issues and have a break from study while still being enrolled.

29. Submitted to the Tribunal is the claimed hardship to the applicant by the cancellation of the visa. It is indicated that cancellation of the visa has further deteriorated the applicant’s psychological distress. He was unable to tell his family that his studies have been discontinued. He feels an outcast and has been financially affected.

30. It is claimed that the applicant has wasted several years without obtaining formal qualifications. This will impact on his future and ability to compete in the job market. The applicant is willing to take control of his life and resume his studies if he is able to do so.

31. The Tribunal accepts a degree of hardship to the applicant if the visa remains cancelled in terms of having to return to Pakistan without obtaining educational qualifications impacting on his career prospects. The Tribunal accepts some degree of mental distress as a result of the visa being cancelled.

32. The Tribunal accepts that the applicant would wish to stay in Australia and complete his studies and that his inability to do so would be a hardship.

33. The Tribunal accepts a hardship to the applicant if the visa remains cancelled is that this will limit the ability of the applicant to apply for other visas in Australia onshore. If the visa remains cancelled the applicant could become an unlawful non-citizen although the Tribunal considers that the applicant would maintain the ability to apply for a Bridging visa to make his status lawful.

34. There is no evidence that the interests of Australian children are affected by the cancellation or that there is any person attached to the applicant’s visa who would also be affected by the cancellation.

35. The applicant has failed to provide information requested by the Tribunal relating to his study progress in Australia from 2012. In the circumstances of the Tribunal not being able to conduct a hearing, the Tribunal considers that the study history of the applicant is neither adverse nor supportive to the applicant in the exercise of the Tribunal’s discretion.

36. The Tribunal has no evidence the applicant has failed to abide by any other visa conditions or that he has acted inappropriately in terms of his dealings with the Department. The Tribunal does not consider there are any other significant relevant discretionary factors.

37. In summary, the applicant has not been enrolled in a registered course for approximately 14 months. This is a significant breach. The Tribunal might consider the accident affecting the applicant’s grandparents as circumstances beyond the applicant’s control and causing a degree of mental distress to the applicant for which it would make some temporary allowance in terms of breaching these obligations. However, a mechanism is provided to enable students to seek a deferral from study yet maintain enrolment in such circumstances based on medical or compassionate grounds. The fact of the applicant not taking the opportunity to avail himself of this option and allowing himself to be in breach for as long as 14 months is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

38. The Tribunal accepts that there will be negative consequences to the applicant as a result of the continued cancellation of the visa as set out. However, the Tribunal is not satisfied that those matters outweigh the nature and length of the breach and its circumstances. The Tribunal considers that it should exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    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.