Nisar (Migration)

[2019] AATA 3594

Nisar (Migration) [2019] AATA 3594 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Muhammad Rauf Nisar

CASE NUMBER:  1823773

HOME AFFAIRS REFERENCE(S):     BCC2018/1888961

MEMBERS:Dr Jason Harkess

DATE:24 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and substitutes in its place a decision not to cancel the visa

Statement made on 24 July 2019 at 9:20am

CATCHWORDS

MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 –relationship problems – experience symptoms of anxiety and depression – genuine about completing the qualification– decision under review  set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 14 August 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 17 June 2014 with an original expiry date of 30 August 2020, providing for more than six years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia. Specifically, the Applicant was to enrol in and successfully complete an Advanced Diploma of Engineering from 14 July 2014 to 30 June 2016 (‘the Advanced Diploma’), followed by a Bachelor of Engineering (Electrical and Electronic Engineering) from 18 July 2016 to 30 June 2020 (‘the Bachelor’s degree’). The Advanced Diploma and Bachelor’s degree were to be undertaken by the Applicant at Victoria University. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. He was assisted by his registered migration agent, Mr Aftab Mohammad.

6. For the following reasons, the Tribunal has decided to set aside the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 21 August 2017 to 14 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 12 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant finished the Advanced Diploma, as originally planned, although in the course of the hearing the Applicant clarified in evidence that this was not the case. The PRISMS report also indicated that his enrolment in the Bachelor’s degree course was cancelled by the course provider on 21 August 2017 due to the non-commencement of studies. At the date of the delegate’s decision, the Applicant had not been enrolled in any registered course of study since 21 August 2017.

4. The Department of Home Affairs wrote to the Applicant on 26 July 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 1 August 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition by explaining the circumstances giving rise to it. In his evidence before the Tribunal on 4 July 2019, the Applicant also conceded that he had been in breach of his student visa for the period alleged by the delegate.

6. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In his NOICC response, the Applicant stated that his studies in Australia had started out well. He stated that, in semester 2 of 2014 and for all of 2015, when he was undertaking the Advanced Diploma, he obtained good grades. He stated that during this time he was a motivated and driven student. However, in February 2016, the Applicant stated that he started to experience symptoms of anxiety and depression. He lost his focus on studies due to relationship problems he was having with his girlfriend who remained in Pakistan.

3. It appears the cause of these problems arose from his girlfriend’s parents not approving of their daughter’s relationship with the Applicant. The issues associated with the relationship appeared to create more significant problems as between the families of the Applicant and the Applicant’s girlfriend, respectively. According to the Applicant, the problems were intensified when his parents made a formal request of his girlfriend’s parents that they be married. The Applicant was in Pakistan when this request was made in about the December 2016. But the request was met with rejection by the girlfriend’s parents. That decision on the parents’ part effectively brought an end to the relationship between the Applicant and his girlfriend (now ‘ex-girlfriend’).

4. The Applicant then returned to Australia. Shortly after his return, the Applicant stated that his ex-girlfriend’s brother suffered serious injury from a shooting. According to the Applicant, his ex-girlfriend’s parents suspected the Applicant’s family had in some way been involved in the shooting. The conflict between families had a detrimental effect on the operation of the Applicant’s father’s business. All of these events, according to the Applicant, took a toll on his mental well-being while in Australia. His essential claim in the NOICC is that his ability to continue his studies was detrimentally affected as a consequence of this stress.

5. At the hearing before the Tribunal, the Applicant gave evidence that was largely consistent with his NOICC response. He produced documentary evidence of his academic achievements in Pakistan as well as his academic transcript from Victoria University relating to his studies in the Advanced Diploma. According to the Applicant’s evidence, which was confirmed in submissions by Mr Mohammad, the Advanced Diploma was a 2 year course. The Applicant’s academic record showed that he had clearly passed the units in the first 18 months of the course. It will represent a significant qualification if it is ultimately obtained. His last completed semester was in the second half of 2015. Following that, the problems associated with his girlfriend started to arise.

6. In the course of evidence given at the hearing before the Tribunal, the Applicant stated that he had been in a long-term relationship with his then girlfriend for eight years up until February 2016. The Applicant described it as a very happy relationship, and one borne out of ‘love’ rather than ‘arrangement’, the latter type of relationship being prevalent in Pakistan according to its customs. Both the Applicant’s parents, and his girlfriend’s parents, were aware of the relationship and approved of it for eight years. However, according to the Applicant, in February 2016 the girlfriend’s parents had identified a suitor and future husband for their daughter who was someone other than the Applicant. From the parents’ perspective, the decision to have their daughter married to somebody else was obviously incompatible with the relationship between their daughter and the Applicant continuing. They therefore took steps to end it.

7. The Tribunal accepts the evidence of the Applicant relating to the situation that arose with respect to his long-term girlfriend. It was obviously an emotionally traumatic time for him, given that he had been in an eight year relationship with which he was personally satisfied. He had obviously contemplated a future with his girlfriend. That future, it seems, was taken away from him not by his own choosing. The attempts by the Applicant and his family to convince his girlfriend’s parents to change their mind bore no fruit. The Applicant no doubt underwent a very tumultuous period in his life throughout 2016, all the while having the burden of complying with his student visa conditions in Australia. No doubt, all of this was exacerbated when he came to the realisation that his relationship was at an end contrary to his own personal wishes.

8. The situation explains why he lapsed with respect to complying with his visa conditions. However, the Tribunal notes that the PRISMS report does not represent a complete picture of how it was that the Applicant came to have his enrolment in the Bachelor’s course cancelled. According to the Applicant, he did not complete the Advanced Diploma course as result of the personal troubles he was having in 2016. It also seems, from the Applicant’s evidence, that his studies were interrupted as a result of having to deal mentally with the situation relating to his girlfriend and her family in 2016. He produced evidence of making his last payment to Victoria University in 2016 which was a receipt date 23 May 2016 in the amount of $7,400.  This appears to have related to the final semester of the Advanced Diploma course. However, he did not complete it. As a result, he was not eligible to commence the Bachelor’s course, leading to the cancellation of the enrolment in that course which ultimately came to the attention of the Department.

9. The thrust of the Applicant’s submissions to the Tribunal is that his visa should not be cancelled so that he can at least complete his Advanced Diploma course before he returns to Pakistan. The Tribunal sees sense in allowing this to take place. The Applicant has clearly demonstrated aptitude in the field of engineering by completing 18 months of the course. There is only 25% of the course left to complete, being another six months. The Tribunal accepts that life circumstances intervened to cause major disruption to the Applicant’s ability to complete the Advanced Diploma with just six months of the course left to complete. It is the Tribunal’s view that it would be unnecessarily punitive to cancel his visa and deny him the chance to complete that course in Australia given he has completed so much of it already. It is a qualification that will certainly enhance his future career prospects upon his return to Pakistan.

10. In the course of the hearing, the Tribunal raised concern as to the length of time that has passed since he completed his last semester of studies in the Advanced Diploma. Given that more than three years have passed since he was last enrolled in the course, the regulations and policies of Victoria University might be such as to deem him ineligible to continue with it. The Tribunal therefore concluded the hearing on 4 July 2019 by directing the Applicant to provide evidence from Victoria University that shows that he remains eligible to re-enrol in the Advanced Diploma. If the Applicant is not eligible, there would be little point in allowing him to remain in Australia. The Tribunal gave the Applicant until 23 July 2019 to file such evidence.

11. Evidence of the Applicant’s attempts to re-enrol in the Advanced Diploma course at Victoria University since the hearing date of 4 July 2019 was provided to the Tribunal on 23 July 2019. Unfortunately, that evidence indicates that the Applicant’s attempts to obtain an offer of enrolment were rebuffed by Victoria University because his visa is presently cancelled. The evidence also indicated that the Applicant attempted to explain to administration staff at the university that the Tribunal specifically requested the evidence so that it could make a decision in relation to the present application on review. The Applicant’s explanation appears to have been met with a response from administrative staff that has essentially frustrated the Tribunal’s point of inquiry. The university’s administration will not declare whether the Applicant is eligible and provide him with the information sought until the Tribunal makes a decision in relation to the present application on review.

12. Not to be deterred by the position of Victoria University, the Applicant approached other universities in an attempt to enrol in an equivalent course. Regrettably, he was met with similar responses.

13. In the circumstances of the evidence presented, the Tribunal considers it appropriate to give the Applicant the benefit of the doubt that he will be able to re-enrol and complete the Advanced Diploma. He has demonstrated to the Tribunal’s satisfaction that he is genuine about completing the qualification.

14. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

15. The Tribunal notes that if the visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Migration Act 1958 if does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. As noted above, this consequence would be unnecessarily punitive in the circumstances of this case.

16. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and substitutes in its place a decision not to cancel the visa.

Dr Jason Harkess
Member