Nasir (Migration)

Nasir (Migration) [2020] AATA 4326 (19 February 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Bilal Nasir
CASE NUMBER:  1905293
DIBP REFERENCE(S):  BCC2018/5405439
MEMBER:Wendy Banfield
DATE OF DECISION:  19 February 2020
DATE CORRIGENDUM
SIGNED:11 March 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
Paragraph 52, in the first line, the word ‘not’ should be removed due to typographical error.

Wendy Banfield
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Bilal Nasir
CASE NUMBER:  1905293
HOME AFFAIRS REFERENCE(S):          BCC2018/5405439
MEMBER:Wendy Banfield
DATE:19 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 19 February 2020 at 12:46pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – fundamental breach of a student visa – circumstances giving rise to non-compliance – vicissitudes of life – not beyond the applicant’s control – study history in Australia – non-genuine student – 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

This is an application for review of a decision dated 26 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled to study for a period of more than 11 months in breach of conditions attached to his visa, The issue in the case is whether the visa should be cancelled.
Background
The applicant is a citizen of Pakistan and is currently 25 years old. He came to Australia on 19 March 2014 as the holder of a Subclass 573 Student visa. Since his arrival the applicant has departed Australia once, from 30 November 2015 to 3 February 2016. While in Australia the applicant has been enrolled in a Diploma of Business, Bachelor of Business and Bachelor of Accounting.
The applicant appeared before the Tribunal on 8 January 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Prior to and at the time of the hearing the applicant submitted the following evidence:
·     Copy of the Department’s decision dated 26 February 2019;
·     Academic transcript from La Trobe College for a Diploma of Business indicating seven units completed;
·     Letter of offer dated 31 January 2019 from Group Colleges Australia for a Bachelor of Accounting from 13 May 2019 to 22 April 2022;
The Tribunal has also taken into account information provided to the Department which consisted of the applicant’s email responses to the Department’s Notice of Intention to Consider Cancellation (NOICC); copy emails from GCA Admissions.
The hearing
The applicant advised he came to Australia in March 2014 to undertake a Bachelor degree in Accounting and Finance. He was also planning a Master’s degree either in Australia or Pakistan. The applicant began his degree in 2014 and claimed he completed the first year. In 2015 he said his grandmother was very sick and he had to give his attention to that as well as take leave from university to return to Pakistan for two months. According to the applicant he was formally granted leave to travel. However, after he returned in 2016 his grandmother passed away. The applicant said he was closer to his grandmother than his parents and could not cope with it.
The applicant said he did not see any doctors at the time and stayed in his room. He said he submitted his fees of $7,000 but his COE at La Trobe University was cancelled because he could not pay a $200 late charge. The applicant said he could not get a refund straight away but was able to enrol at Holmes College in 2016. He claimed he only got a 60% refund several months later. Although he had re-enrolled, the applicant said he could not keep up with his studies due to his grandmother death. The Tribunal put to the applicant that the gap in his studies was from 16 February 2018 to January 2019. He confirmed that was correct.
According to submissions, the applicant had applied for a second Student visa in 2017 which was initially refused because the applicant had not submitted his medical evidence, however the case was remitted to the Department by the Tribunal (differently constituted) and the visa granted in January 2018. The applicant said he then enrolled at GCA College. He said he applied for and paid for two subjects and attended classes for about four to six weeks but his COE was cancelled. The applicant said when he inquired about the reason he was told it was because he had not paid for three subjects.
The representative said the COE was cancelled about a month after the visa grant because he was not enrolled in three subjects which was a requirement for a full-time study load. When asked why he did not enrol in three subjects the applicant referred again to his grandmother’s loss. He said he talked to his parents who told him to start off slowly and the college allowed him to start, but then cancelled his COE for non-payment. When asked if he had evidence of this, the applicant said he should have. The Tribunal put it to the applicant that he is required to study full-time but he claimed he could have taken two subjects followed by three in each of the next two terms meeting the required eight in total. He said he did not seek a refund because he wanted to study. However, in order to re-enrol, the applicant said he had to provide identity documents again.
The applicant next claimed that in February 2018 before he could re-enrol his identity papers, passport and money were stolen from his car. He claimed to have tried to report it to the police but they were “too busy”. Then the applicant says it was too late to re-enrol at college and he was told to come back next semester. In the next semester he said he tried to re-enrol again but could not get another COE because it took “a very long time” to get replacement identity documents, passport and bank statements. When asked how long it took, the applicant said “between four to five months”. He said he had to go to his embassy, and get money from overseas. The applicant said he tried to re-enrol in January 2019 but was told he could start in May 2019 and was given an offer letter.
The applicant claimed he was allowed to return to Holmes College because the dean agreed the applicant’s issues were partly due to “the system”. The Tribunal asked what he did during the period when he was not studying, from February 2018 to January 2019. The applicant said he “stayed at home” which the Tribunal did not accept and asked him to explain. The applicant declared he had not worked in Australia, was supported by his parents and had not engaged in criminal activity. When asked exactly how he had spent the relevant period of nearly 12 months he insisted he was not very social and had “stayed at home”.
The Tribunal discussed with the applicant whether he had completed any course since he arrived in Australia. He said he had finished seven subjects and had to do 21 in total. The applicant said he asked GCA College whether he could accelerate his course and finish in earlier which he claimed was agreed. A letter of offer from GCA College
In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared he did not meet a requirement for the grant of a student visa. The information put to him was that according to the Provider Registration and International Student Management System (PRISMS), he had not maintained enrolment in accordance with the requirements of his student visa. Also, it indicated he had finished all or part of the Bachelor degree in 2016. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time in which case, the Tribunal would consider the request and may adjourn the hearing or allow time after the hearing to respond.
The applicant was given a copy of the record and did not ask for time to comment. He advised the record was showing partial completion of a course in line with a procedure adopted by the education provider. He said it indicated he had completed the Diploma course leading to a Bachelor degree. The applicant did not dispute the accuracy of the record showing his past enrolment history.
The Tribunal was asked whether he has a compelling reason why he needs to remain in Australia. He said the main reason for coming to Australia was to finish his course. He said the issue was mainly that the university did not allow him to study, and then the Department did not allow it. He said the university then required him to provide documents that he could not arrange in time and when they allowed it in 2019 but the Department cancelled his visa. He said he needs to study in Australia due to the facilities, which is why his parents funded him in Australia. The applicant said his parents supported him restarting his course in 2019. The Tribunal asked the applicant why he has only completed seven units of a Diploma in six years if his focus has been on study. The applicant agreed it did not represent his objective but he said it was due to circumstances over the years. The applicant claimed he has not failed any subjects.
The applicant submitted he had complied with all other visa conditions and has not worked in Australia. Regarding any hardship that may result from the visa being cancelled, the applicant said there would be psychological and emotional hardship. He said he visited a doctor “recently” who agreed the applicant would not have been in a good mental state to be able to study over the last year. He said he does not have a report but would be able to obtain one if given time. The applicant claimed he was not in a good mental state due to his grandmother’s death and the robbery. The applicant reiterated he had tried to get back to his studies but he suffered frustration and increased anxiety levels.
The applicant advised he did not contact the Department prior to being issued a NOICC and only dealt with his university; he said this was because he thought they would help him. He indicated no other person holds a visa that would be affected by his visa being cancelled. The Tribunal explained to the applicant the legal consequences of visa cancellation and the applicant said he understood. He said the legal consequences would be difficult because he has “tried again and again to study”. The applicant was not aware of Australia having any international obligations in his case.
In conclusion, the applicant said his current visa finishes in about nine months. He said he just wants that time to finish a degree. The Tribunal questioned the feasibility of finishing a degree in that timeframe. The applicant said his education provider has agreed he can accelerate his course and asserted again that he has always passed whatever he has attempted. He said his academic record has always been “very good”, even in his own country.
Representative’s submission – Iyare Ehimudiamen
The representative asked that the Tribunal exercise its discretion to revoke the cancellation of the applicant’s visa. It was submitted the applicant is different from a “serial student” in that he has held two student visas. During that period, the earlier visa was delayed because he did not provide his medicals. The break in study was said not be as “odious” as it looks even when considering the applicant does not yet have a degree. The representative said the applicant has been able to show he can study at a tertiary level and the Tribunal can be assured he is able to study. If a decision is made to revoke the cancellation it will only be for nine months and the applicant will then have to apply for another visa and satisfy the genuine temporary entrant criteria. He said this is not a situation of an applicant just here to work. A request was then made to submit a medical report, however, the Tribunal noted such a report would not be contemporaneous with the period when the applicant did not study and questioned the value of such a submission. Nevertheless the applicant was granted time after the hearing to provide further evidence, and the Tribunal expressed an interest in any communications with education providers regarding re-enrolment. The Tribunal was referred to the email submitted to the Department from GCA admissions dated 7 February 2019. The Tribunal asked about any evidence such as correspondence with the education provider from the relevant time, prior to visa cancellation when the applicant was not enrolled. The applicant said he was told by the college he was applying to he would need documentation that he did not have then.
The representative stated he would like time to address the period when the applicant was not enrolled and also provide a medical report. However, he noted the Tribunal may not place much weight on it. The Tribunal advised the applicant was welcome to submit further evidence but commented that a current medical report with reference to past events may not carry much weight. The representative said a report with a diagnosis that also covered grief may be useful. The Tribunal advised it would not be pre-judging such information and would take it into account in assessing the case.
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
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?
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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
According to the Department’s records, the applicant was not enrolled to study from 16 February 2018 to 23 January 2019 when a Notice of Intention to Consider Cancellation (NOICC) was issued. The applicant gave evidence that he attempted to re-enrol to study in February 2019 but the Department cancelled his visa on 26 February 2019. In his written response to the Department dated 6 February 2019 and in evidence to the Tribunal, the applicant conceded he had failed to maintain enrolment for the relevant period.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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
The applicant arrived in Australia as the holder of a Student visa in 2014 and was enrolled to study. He completed seven units out of eleven towards a Diploma of Business that was leading to a Bachelor degree. On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose to travel to and stay in Australia was to study.
During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. Rather than respond directly to the question the applicant referred to his education provider not allowing him to study because he could not provide documents, which led to cancellation of his visa. When asked why he has to study in Australia rather than in Pakistan, the applicant claimed the facilities in Australia are better and his parents had funded him to study here. The applicant said his failure to study was due to circumstances over the years.
The Tribunal considered the applicant’s response but is not satisfied he has demonstrated a powerful or convincing reason for needing to remain in Australia. His views as to the reasons for his failure to maintain enrolment and the superior facilities in Australia compared to his home country do not persuade the Tribunal he has a strong need 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
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)
In his response to the Department of 8 February 2019 the applicant addressed the hardship that would result from cancellation of is Student visa. He advised he is the only son and eldest child of his family and is expected to provide financial, mental and physical support. His parents expect him to return with an Australian degree and work as a professional in Pakistan. The applicant claimed cancelling his visa would affect his long term future and his family. The applicant referred to “gradually coming out of the trauma” (in reference to his grandmother’s death) and deciding not to go to a doctor or psychologist.
The applicant advised the Tribunal that cancellation of his visa would lead to psychological and emotional hardship. He said he had seen a doctor recently who told him he would not have been in a good mental state in the previous year which was a result of his grandmother’s death and the theft of his identity documents and money. The Tribunal accepts a certain degree of hardship will be caused if the Student visa is cancelled and places some weight in favour of the applicant when assessing this criterion.
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

The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not maintain enrolment for approximately 11 months, from 16 February 2018 to 23 January 2019. The applicant submitted reasons for this, first, he claimed his grandmother passed away in 2016 and second, his identify documents including his passport and $5,000 was stolen from his car. The applicant said his grandmother was sick in 2015 and he travelled to his home country for two months. However after he returned to Australia, in 2016 his grandmother passed away and he claimed he was unable to study or focus on anything as a result. The applicant did not provide any independent evidence of his grandmother’s death but the Tribunal is prepared to accept that if this occurred, it would have caused the applicant to suffer a level of disturbance and grief.
The second reason is an alleged robbery during which the applicant says his identify documents and significant funds were stolen; however, no independent evidence was submitted. The applicant claimed in his written evidence to the Department on 8 February 2019: “I called the police on the spot but they would refuse to help me at the spot [sic] due to the station being highly busy”. There is no evidence the applicant attended a police station and made a report about the incident himself. In his evidence to the Tribunal the applicant repeated his claim that the police were “too busy”. Without any corroborating evidence, the Tribunal does not accept the applicant’s bare assertions that this event occurred. It is not credible the applicant would accept the police were too busy to assist him, or that he did not make a report himself, especially since he claims his passport and identity documents were stolen. There would have been many types of evidence the applicant could have submitted to support his claims such as applications for new documents or evidence of him having notified his bank or other relevant authorities but none were provided. As a result, the Tribunal does not find credible the applicant’s explanation that the loss of his identity documents and property contributed to his inability to enrol in a course of study.
The Tribunal also does not accept the applicant’s claim that it took him “four to five months” to replace documents, or that this delay meant he was unable to enrol in a course of study for nearly a year. The applicant claimed an education provider that he was enrolled with before would not re-enrol him without identity documents but again, the applicant has no independent evidence to support his assertions in this regard.
The Tribunal considered the applicant’s claims made in written submissions to the Department and at the Tribunal hearing. While the applicant may have been affected by his grandmother’s death (the applicant did not indicate when in 2016 this occurred), the period in which he was not enrolled was from February 2018 to January 2019, at the very least, 12 months later. Although the applicant may have been affected by a stressful event, it was not an adequate reason for him to stay in Australia while not complying with the conditions of his Student visa by not being enrolled over a long period of time.
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, make acceptable academic progress or seek a deferment of his studies during the period when he was not enrolled. Therefore, the Tribunal places very limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
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 the applicant’s favour in this regard.
· whether there would be consequential cancellations under s.140
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
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
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
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
The Tribunal is not satisfied the applicant has been honest about his study history and circumstances in Australia. During the hearing the applicant claimed he has not failed any subjects. However, the academic transcript from La Trobe College for part of a Diploma of Business undertaken in 2014/2015 indicates the applicant attempted 11 subjects; he passed seven and failed four[1]. As well as the inaccuracy of the applicant’s evidence, the Tribunal does not accept the completion of seven units of a Diploma since 2014 is indicative of a genuine student.
[1] The La Trobe College transcript includes the following units and fail marks ‘Foundations of Management’ – 40%; ‘Fundamentals of Finance’ – 20%; ‘Marketing: Defined, Planned & Delivered’ – 39%; ‘Fundamentals of Finance’ (repeated) 0%.
In his evidence to the Tribunal, the applicant made several references to his attempt to re-enrol to study in early 2019 and directed the Tribunal to an email from GCA Admissions dated 7 February 2019 in this regard. The Tribunal notes this correspondence from an education provider occurred soon after the Department sent him a NOICC, on 23 January 2019. In his response to the Department on 8 February 2019 the applicant claimed: “I had already applied to enrol in January with my college prior to the [NOICC] email I received about my brief. I had also paid them a part of my fee that would get me enrolled.” The applicant did not provide any evidence of contact with GCE College prior to the NOICC and the Tribunal considers it more likely the applicant made immediate contact with his agent and/or the college after receipt of the Notice. This finding is supported by the subject line in the emails between the applicant and GCE College which states: “Urgent COE request”. The Tribunal finds the applicant was only motivated to try and re-enrol after learning of the Department’s intention to consider cancelling his visa.
The applicant requested time after the hearing to submit further evidence which the Tribunal agreed to and undertook to consider in assessing his case. As well as a medical report the applicant’s representative said would be submitted, the Tribunal invited the applicant to provide any other evidence of his communications with education providers to support his claims about his enrolment, and cancellation of his COE in 2018. During the hearing when asked if the applicant had this evidence he said he “should have”. However, no further submissions were received after the hearing.
The Tribunal finds that these matters are relevant to the applicant’s case and weigh against him in the Tribunal’s consideration of whether to exercise its discretion to cancel the visa.
Conclusion
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.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
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 must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 4326

19 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction