Puri (Migration)

[2019] AATA 3670

Puri (Migration) [2019] AATA 3670 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Hasan Puri

CASE NUMBER:  1906865

HOME AFFAIRS REFERENCE(S):           BCC2019/111879

MEMBER:Peter Haag

DATE:16 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2019 at 10:59am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – unsatisfactory course progress – medical reasons – no compelling reasons – financial support available – 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 21 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not been enrolled in a registered course of study since 27 April 2018. Consequently, he did not meet the requirements of condition 8202(2)(a) and did not comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent; however, the applicant’s agent was not present at the review.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study.

8. The applicant initially arrived in Australia in June 2016 as the holder of a Student Higher Education Sector (Subclass 573) visa. According to the applicant’s evidence, the Student visa was granted offshore on 15 June 2016 for a period of three years and eight months. The applicant’s ultimate study purpose was to complete a Bachelor of Accounting and Finance in Australia.

9. According to the applicant’s evidence, his planned pathway to completion of the Bachelor of Accounting and Finance was first, to complete two courses of study at La Trobe University: a foundation course in business, followed by a Diploma of Business and after that, the Bachelor of Accounting and Finance.

10. On 28 February 2019 of the Department of Immigration and Border Protection (the Department) provided to the applicant a written Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa[1]. The applicant responded to the NOICC on 5 March 2019; on that date the Department received a Statement of Purpose (SOP)[2] from the applicant; the SOP was sent as an attachment to an email sent from the applicant’s personal email address[3]. The delegate cancelled the applicant’s visa on 21 March 2019 because the applicant was not enrolled in a course of study.

    [1] Tribunal file, folio 14

    [2] Tribunal file, folio 17

    [3] Tribunal file, folio 18

11. At the review the applicant informed the Tribunal in evidence that he was provided with a copy of the delegate’s decision; and, that he had read and understood the decision. The applicant subsequently provided a copy of the decision to the Tribunal. 

12. According to the applicant’s SOP and also his evidence before the Tribunal, the applicant accepts he has not been enrolled in a registered course of study since his enrolment in the Bachelor of Information Technology at Holmes Institute was cancelled by the Institute on 27 April 2018, on the grounds the applicant did not complete his studies, and he did not re-enrol in the course. On the basis of the evidence before the Tribunal, the Tribunal is satisfied the applicant has not been enrolled in a registered course of study since 27 April 2018; and accordingly, the Tribunal finds the applicant has not complied with condition 8202(2). Consequently, the Tribunal finds that the ground for cancellation of the applicant’s Student visa under s.116(1)(b) of the Act is made out.

    Consideration of the discretion to cancel the visa

13. 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 whole of the evidence in this case, including matters raised by the applicant in writing and evidence before the Tribunal, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The purpose of the visa holder’s travel to and stay in Australia, including whether the visa holder has a compelling need to remain in Australia

14. The applicant’s travel to and stay in Australia was to enable the applicant to remain in Australia temporarily whilst undertaking the package of three courses referred to above in this decision. According to the applicant’s evidence, his ultimate purpose in completing the Bachelor of Accounting and Finance was to obtain a qualification in accountancy; accountancy is a valued qualification in his family and members of his family have achieved accountancy qualifications. Furthermore, the applicant’s father, and his family more generally, want the applicant to stay in Australia until he has competed the degree course. The applicant does not want to disappoint his family and return to Pakistan without the degree.

15. In order to fulfil his study purpose, the applicant arrived in Australia in June 2016 as the holder of a Student visa permitting him to study in the higher education sector. According to the applicant’s evidence his visa was valid for three years and eight months. In evidence to the Tribunal, the applicant informed the Tribunal that he successfully completed the first course in his package of three courses, the foundation course in business studies, in either January or February 2017. He completed the course with what he described as high results; the Tribunal accepts that evidence.

16. The Tribunal notes the applicant applied to La Trobe University for special consideration in relation to his examinations on 24 and 27 January 2017. The application was supported by a medical certificate which opined the applicant was unfit to study on one day, namely, 13 January 2017.  Nevertheless, the applicant achieved high results in his examinations.

17. After completing the foundation course, according to the applicant’s evidence, he commenced the Diploma of Business in February 2017. The end date of that course was June 2018.

18. The applicant informed the Tribunal that he left Australia on 28 January 2017 for the purpose of obtaining medical treatment for his back from his doctor in Pakistan. He returned to Australia on 25 February 2017. The applicant did not inform either the course provider or the Department about his change in circumstances and how his medical condition was, according to the applicant, interfering with his ability to meet his study purpose in Australia.

19. The applicant, upon his return to Australia in February 2017, studied the Diploma course. The course exams were held in May 2017, according to the applicant. He failed two out of three subjects. On 8 June 2017 the applicant returned to Pakistan for medical treatment for his back. The applicant returned to Australia on 3 July 2017; the applicant informed the Tribunal that his return to Australia coincided with the University semester break. The applicant did not return to study of the Diploma course, instead he enrolled in the Bachelor of Information Technology at Holmes Institute Melbourne. The start date of that course, according to the applicant’s evidence was November 2017. The applicant claims he commenced the course but returned to Pakistan on 15 December 2017 because his father was suffering from vertigo and he wanted to see him. The applicant did not inform the Department or the course provider of his changed circumstances before he disengaged from the course. The applicant returned to Australia on 14 January 2018; his examinations were scheduled to start in February 2018.

20. The applicant, according to his evidence, asked the course provider (the Holmes Institute) to defer his exams but his request was refused. This claim was not supported by any documentary evidence which verified the applicant in fact made that request. In evidence the applicant indicated he did not sit for the exams in February 2018 because he had not prepared for them.

21. The applicant, according to his evidence, returned to Australia in January 2018 with the intention of resuming his studies at Holmes Institute but he did not do so because he was upset about his father’s poor health. On 29 June 2018 the applicant returned to Pakistan to visit his father and attend to his own health; he returned to Australia on 18 August 2018 for the purpose of resuming study in Australia. In the meantime, Holmes Institute cancelled the applicant’s enrolment on 27 April 2018. According to the applicant’s evidence the reason for cancellation was that he did not complete his studies and he did not re-enrol: the Tribunal accepts this evidence.

22. Upon returning to Australia in August 2018 the applicant endeavoured to re-enrol at La Trobe University in the Bachelor of Business. He was informed no places were available at that time, but that he may be able to in role in the course in February/March 2019. The applicant did not enrol in the February/March 2019 intake because, according to the applicant, he thought he had plenty of time in which to do so.

23. According to the applicant’s evidence, while he was waiting in Australia to enrol himself in February/March 2019, he received the NOICC from the Department dated 28 February 2019.

24. At the hearing the applicant provided to the Tribunal photocopied documentation which demonstrates that in July 2019 and August 2019, whilst the applicant held a bridging visa without study rights, granted to him after the delegate cancelled his visa on 21 March 2019, the applicant attempted to enrol in courses provided by a number of different course providers. Unsurprisingly, the course providers refused to enrolled the applicant because the applicant’s right to study in Australia was ended on 21 March 2019 by the delegate’s decision to cancel the applicant’s Student visa.

25. Throughout the time the applicant held his Student visa, except for the period between his initial arrival in Australia in June 2016 and completing the foundation course in business studies in either January or February 2017, the applicant consistently failed to meet the study purpose for which he was granted the Student visa. In anticipation of the various periods of time (in aggregate, approximately of 16 months), relevant to the applicant failing to meet the study purpose of his visa because he absented himself from his courses and Australia, the applicant did not engage with his course providers to discuss with them his various options, such as deferment of his studies, or the Department. In evidence to the Tribunal the applicant provided no satisfactory explanation for his failure to discuss his options with his course providers or the Department; in his evidence the applicant informed the Tribunal that he regretted not doing so.

26. The failure of the applicant to fulfil the purpose for which the Student visa was granted, and his failure to relevantly engage with his course providers and the Department in circumstances where he disengaged from his studies, and departed from Australia for significant periods of time, is conduct inconsistent with being a genuine student who travelled to, and spent time in Australia primarily to fulfil the study purpose for which his visa was granted to him: this inconsistency, and the circumstances in which it arose is a matter of serious concern to the Tribunal.

27. The evidence indicates to the Tribunal the applicant may have travelled to Australia to fulfil the requisite study purpose, however, over time he diverted from that purpose.  After the January/February 2017 period, the applicant to varying degrees failed to progress academically; he disengaged from study and at the time his course enrolment was cancelled by Holmes institute on 27 April 2018, he was not meeting the study propose for which his visa was granted. The applicant’s study history does not satisfy the Tribunal that the applicant’s claim to be a genuine student is valid, and that he was primarily motivated after January/February 2017 to stay in Australia to meet the study purpose for which the Student visa was granted to him. 

28. The applicant returned to Australia from Pakistan after his enrolment was cancelled on 27 April 2018. He elected not to enrol at La Trobe University in the February/March 2019 intake for the Bachelor of Business because he thought he had plenty of time in which to do so. The applicant was notified by the Department on 28 February 2019 of the Department’s intention to consider cancellation of his Student visa. There is no evidence before the Tribunal that the applicant tried to enrol in the Bachelor of Business at La Trobe after he received the NOICC from the Department. Instead, the applicant indicated in evidence, he was simply waiting in Australia in the knowledge that he was not enrolled in a course of study, and he was not fulfilling the study purpose for which the Student visa was granted to him.

29. After considering all of the foregoing matters the Tribunal is not satisfied the applicant has been staying in Australia primarily for the purpose of fulfilling the study purpose for which the

    
    

    Student visa was granted. Furthermore, the evidence before the Tribunal does not satisfy the Tribunal that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

30. The Student visa issued to the applicant was valid for three years and eight months, according to the applicant’s evidence. In the approximately two years and four month period after initially arriving in Australia in June 2016, the applicant successfully completed one of the three courses in the package of courses he intended to undertake in Australia in reliance on his Student visa. That course was the foundation course in business studies completed in the January/February period 2017. Thereafter, the applicant failed to progress academically. The applicant’s study history up to the time his visa was cancelled, demonstrates only limited fulfilment of the study purpose for which the visa was granted. After the Holmes Institute Melbourne cancelled the applicant’s enrolment on 27 April 2018, the applicant has not been enrolled in a registered course of study. The evidence demonstrates the applicant failed to comply with the visa condition that he be enrolled in a registered course. This consideration weighs in favour of cancelling the applicant’s visa.

    Degree of hardship that may be caused by the cancellation of the visa

31. The evidence indicates the applicant’s parents and other family members are likely to be disappointed in the applicant if his visa is cancelled, and he returns to Pakistan without completing the Bachelor of Accounting and Finance degree. The applicant will also be disappointed and upset by his own failure to fulfil the study purpose for which the visa was granted to him. Nevertheless, the relevant evidence before the Tribunal does not satisfy the Tribunal that the applicant would suffer financial, psychological or other hardship to such a degree that is visa should not be cancelled. Accordingly, the Tribunal is not satisfied this consideration weighs either in favour of or against cancellation of the visa and the Tribunal has decided to give it neutral weight in this decision.

    Circumstances in which the ground for cancellation arose

32. The ground for cancellation arose in cirmstances where Holmes Institute Melbourne cancelled the applicant’s enrolment in the Bachelor of Information Technology on 27 April 2018 because, according to the applicant’s evidence, the applicant did not complete his studies and he did not re-enrol. The evidence before the Tribunal referred to previously in this decision at [17] – [20] demonstrates the applicant was absent from Australia for a significant time between the start date of the Bachelor of Information Technology, November 2017, and the end date of that course in February 2018[4].

    [4] The applicant provided this information in his evidence before the Tribunal

33. In summary, the evidence indicates the applicant returned to Pakistan on a number of occasions to receive medical treatment for back injury, and to spend time with his father because he was suffering from vertigo, resulting in the applicant being disengaged from his studies for significant periods of time.

34. The applicant claims he injured his back when he was lifting heavy weights in a gymnasium during a return visit to Pakistan at the end of 2016.  In evidence the applicant informed the Tribunal that the injury was caused by him not using the correct weight lifting technique; the weights he was lifting were too heavy, and he was performing the exercise without supervision.  This injury needs to be considered in the context of the applicant’s antecedent medical history.

35. The applicant informed the Tribunal that about six or seven years before the applicant injured his back in the gymnasium, he underwent surgery on his back. The purpose of the surgery was to strengthen his lower back which, prior to the surgery, was very weak and if the surgery was not performed the state of his back could have disabled him for life. It is evident the applicant chose to engage in exercises using weights that were too heavy for him, without supervision, using the incorrect lifting technique, and according to the applicant’s evidence, all that was done by the applicant knowing the he had undergone surgery for a serious back condition six to seven years earlier. They Tribunal is of the view that the back condition that took the applicant away from his studies, and back to Pakistan for treatment, arose in circumstances that were within the control of the applicant. He was aware of his earlier prior back surgery; he chose to exercise in the gym without supervision, using an incorrect exercise technique and heavy weights, weights the applicant described in evidence as too heavy.

36. The applicant provided the Tribunal with three medical certificates provided by Dr Hira Asif Mann. In evidence the applicant said Dr Mann is a physiotherapist. Each certificate relates to one appointment only on the following dates: 7 October 2016, 17 February 2017 and 15 June 2017. Each certificate instructs the applicant not to engage in heavy weight lifting, and to undertake stretching exercises and other exercises at home, and to apply various other straightforward remedial things.

1. In evidence to the Tribunal the applicant indicated he chose to rely on a physiotherapist in Pakistan rather than Australia, because the applicant and his father were of the opinion that treatment in Australia was too expensive. Furthermore, according to the applicant, one visit to a physiotherapist in Pakistan would achieve what could only be achieved over three or more visits to a physiotherapist in Australia.

2. Relevantly, the applicant’s father has been providing for the applicant’s upkeep in Australia; he also paid for all of the applicant’s airfares to and from Pakistan. The Tribunal attaches little weight in favour of the applicant to the claimed need for the applicant to return to Pakistan for physiotherapy. The applicant’s evidence to the Tribunal clearly indicates the applicant’s father is financially well-placed in Pakistan and he supports the applicant financially. He pays for the applicant’s airfares to and from Pakistan, he supports the applicant in Australia, and common sense would suggest the cost of the return flights to Pakistan are likely to be greater than the cost of physiotherapy in Australia, equivalent to the physiotherapy described in the three certificates the applicant provided to the Tribunal.

3. Furthermore, the applicant accepted in evidence that his family in Pakistan is wealthy. His father owns a business which manufactures glass used in all types of motor vehicles and motorbikes, and wholesales and retails that glass throughout Pakistan. The business is successful. The applicant enjoys a sound, supportive and ongoing relationship with his father.

4. The Tribunal is not satisfied that the applicant’s financial circumstances are such that it was necessary for him to disengage from his course of study and return Pakistan for the three consultations with the physiotherapist, particularised in the three medical certificates, when equivalent physiotherapy treatment is available in Australia, and the Tribunal is satisfied such treatment was within the financial means available to the applicant. On the available evidence the Tribunal is not satisfied the applicant, if he were a genuine student, would disengage from his studies in Australia and return to Pakistan to receive the treatment reflected in the three certificates the applicant provided to the Tribunal.

5. Additionally, the applicant returned to Pakistan to visit his father who was suffering from vertigo. The evidence indicates the applicant’s father has the benefit of support from members of his family, including the applicant’s siblings, who reside in Pakistan; his brothers are involved in the father’s manufacturing business. The father supported the applicant and facilitated the applicant’s study in Australia. Whilst the Tribunal can accept the applicant wished to spend time with his father in Pakistan when his father was ill, the amount of time the applicant spent in Pakistan, disengaged from his course of study, resulted in the applicant’s enrolment being cancelled. The Tribunal is not satisfied that the applicant was prevented from timing his visits to his father, and to Pakistan, and the duration of those visits, so that he did not disengage from his studies in Australia. The evidence does not demonstrate that it was not possible for the applicant to both visit this father and a physiotherapy therapist in Pakistan, undertake physiotherapy in Australia, and continue his studies in Australia, if study was his primary purpose for being in Australia. It is relevant to observe here, that the physiotherapist in Pakistan provided home treatment plans to the applicant, and there is no evident reason to expect the applicant could not have carried on with that treatment in Australia.

6. The Tribunal is not satisfied that the ground for cancellation of the applicant’s enrolment in the Bachelor of Information Technology, or the cancellation of his visa arose in circumstances beyond the applicant’s control. The circumstances in which the ground for cancellation arose weigh in favour of cancellation of the applicant’s visa.

7. The Tribunal has had regard to the Patient Discharge Slip the applicant provided to the Tribunal during the hearing. This document demonstrates the applicant was a hospital inpatient between 2 July 2018 and 15 July 2018. The applicant was diagnosed to be suffering anxiety. Bearing in mind the applicant’s enrolment was cancelled on 27 April 2018, the hospital document does not demonstrate the applicant was suffering from anxiety during the period leading up to the cancellation of his enrolment, nor does it demonstrate that the reason for the applicant’s anxiety in June/July 2018 was related to the cancellation of the applicant’s enrolment. Accordingly, the Tribunal attaches no weight to the medical matters referred to in the Patient Discharge Slip.

   Past and present behaviour of the visa holder towards the Department

8. The evidence before the Tribunal does not indicate the applicant has been uncooperative with the Department or Departmental staff in the past. The applicant responded to the Department’s NOICC within the required time. Consequently, the Tribunal gives weight to the applicant’s past and present behaviour towards the Department against cancellation of the visa.

   Whether there would be consequential cancellations under s.140

9. The evidence does not demonstrate that any person’s visa would be cancelled under s.140 of the Act as a consequence of the applicant’s visa being cancelled under s.116 of the Act. That is the case because there is no evidence that another person holds a visa because they are a member of the applicant’s family unit and therefore, no person is at risk of their visa being cancelled under s.140 as a consequence of cancellation of the applicant’s visa under s.116.

   Whether there are mandatory legal consequences of a decision to cancel the applicant’s visa

10. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia. The applicant will also be affected by the operation of s.48 of the Act as a result of the applicant’s visa being cancelled under s.116. By operation of s.48 the applicant will have limited options to apply for further visas while in Australia, and the applicant may be required to return to Pakistan. Pursuant to s.48 the applicant will not be able to apply for some visas onshore after cancellation, and unless the applicant can show that he meets Public Interest Criterion 4013, the applicant may be prevented from being granted particular temporary visas for a specified period. The Tribunal has had regard to this consideration and any adverse consequences that may flow to the applicant by operation of the Australian law discussed in this paragraph. Any such consequences would arise lawfully, and therefore the Tribunal gives this consideration neutral weight in respect to cancellation of the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

11. The applicant does not claim to have children in Australia and he has not applied for protection or made claims of being in need of protection. Consequently, there is no indication that cancellation of the applicant’s visa would place Australia in breach of its international obligations such as protecting the rights of children or breaching Australia’s non-refoulement obligations. This consideration is not, according to the evidence, relevant to the decision in this case and therefore the Tribunal gives it no weight in this decision.

    Consequences of cancellation of a permanent visa

12. The relevant visa held by the applicant is a temporary Student visa, consequently, this consideration is irrelevant to the decision and the Tribunal gives it no weight in this review.

    Any other relevant matters

13. The Tribunal has had regard to the contents of the Statement of Purpose the applicant provided to the Department, and to each of the documents he provided to the Tribunal at the hearing including the National Hospital Discharge Card relating to the applicant’s father. That document demonstrates the applicant’s father was hospitalised suffering from vertigo between 15 April 2018 and 30 July 2018. The Tribunal has also had regard to the applicant’s application to La Trobe University for special consideration and the related documents. The Tribunal notes the applicant provided to the Tribunal two x-rays which he indicated were x-rays of his back. The Tribunal is not equipped to evaluate the x-rays. The x-rays were not accompanied by an explanatory medical report. Consequently, the Tribunal returned the x-rays to the applicant and informed the applicant that the Tribunal is unable to give weight to the x-rays. The Tribunal understood the applicant was content for the Tribunal to return the x-rays to his possession. After considering the whole of the Departmental file, all of the documentation the applicant provided to the Tribunal (except the x-rays), the applicant’s evidence and all of the foregoing considerations, the Tribunal is satisfied there are no other relevant matters for it to consider.

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

    DECISION

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

    Peter Haag
    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.