Qaiser (Migration)

[2019] AATA 6623

Qaiser (Migration) [2019] AATA 6623 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farooq Qaiser

CASE NUMBER:  1834845

HOME AFFAIRS REFERENCE(S):          BCC2018/4026380

MEMBER:Peter Booth

DATE:19 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2019 at 9:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – father hospitalised – failure to take reasonable steps – 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 November 2018 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).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202. 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 13 December 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. Condition 8202, as it applies in this case, is set out below. 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).

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

9. The delegate’s decision cancelling the applicant’s student visa is dated 21 November 2018. In that decision the delegate found that the applicant was not enrolled in a registered course of study from 6 November 2017 to 15 October 2018. In the hearing the applicant affirmed the correctness of this finding. 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

10. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines as follows.

    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

12. The applicant said that he arrived in Australia in “January 2015” as the holder of a “student” visa. He intended to study an “MBA”. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant confirmed that he had not been enrolled in a registered course of study during the period 6 November 2017 to 15 October 2018.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

15. The applicant arrived in Australia in January 2015 as the holder of a “student” visa, the type of which he did not recall. He said he intended to study an “MBA” and that the visa was valid “until April 2017”. He said that he started the course in February 2015 but did not complete it. He said he abandoned the course in January 2017. In answer to a question from the Tribunal he said that “I wanted to go to accounting, the course was marketing, applied for a new student visa and obtained it in August 2017”. He said that he is enrolled in a diploma of accounting course which he started in September 2017 but has not finished. When asked why he had not completed the course he said “travel to Pakistan because my father was hospitalised, he was hospitalised in November, I went to Pakistan in February 2018”. The Tribunal enquired when he had ceased studying the diploma of accounting to which he said “in November when the enrolment was cancelled”. The Tribunal enquired why the enrolment had been cancelled to which he said “fees were due and my parents could not help me”. He did not elaborate. The Tribunal enquired whether he had applied to defer the course to which he said “no”. He did not elaborate. The Tribunal enquired whether he had applied to pay the fees in instalments, to which he said “no”. He did not elaborate. The Tribunal enquired whether the applicant had been working at the time to which he said “not at the time”. He did not elaborate. The Tribunal enquired whether he had considered obtaining a job to fund the course himself to which he said “I tried but could not get a job”. The Tribunal invited him to elaborate upon this response to which he said “I was only allowed 20 hours, but could not find a job, went to Pakistan returned after three months, I got a job, but I could not keep it, the casual job”. He did not elaborate further.

16. In answer to a question from the Tribunal the applicant said that he had completed a bachelor of science degree in Pakistan. Further, prior to arriving in Australia he had “worked in an advertising agency full-time, for about eight months, the only job I had after completing the bachelor of science degree”. The applicant’s father was hospitalised in November 2017 until approximately December, and then again in late January. The applicant said that his father is still alive. He added that his father had again been hospitalised in late June, “for about 20 days”. The Tribunal asked whether he had been enrolled in any other course of study since the abandoned diploma of accounting to which he said “no”. However he added that he was enrolled in a diploma of business on 15 October 2018 when he returned from Pakistan. He added that he returned from Pakistan in about April 2018. The Tribunal enquired what he had done between April 2018 and 15 October 2018 to which he said “couldn’t find a job, it was stressful”. He did not elaborate. The Tribunal again enquired whether he had enrolled in any other courses to which he said “no”.

17. The Tribunal drew the applicant’s attention to a variety of hospital records which he had provided to the Tribunal. They appeared to comprise the medical test results, and other administrative records. The Tribunal enquired of the relevance of these documents. After some discussion the Tribunal informed the applicant that the Tribunal accepted that the applicant’s father was hospitalised during the relevant periods and did not provide any money to him. The Tribunal also drew the applicant’s attention to an undated document titled “reasons for breaching visa conditions”. The applicant said he was familiar with the document. The Tribunal observed that the document mentioned “depression and anxiety”. The Tribunal invited the applicant to elaborate on these points to which he said “it was a very hard time from the family, depressing and stressful for me”. He did not elaborate. The Tribunal enquired whether the applicant had obtained any medical treatment for “depression” or “anxiety” to which he said no. The Tribunal enquired whether he had taken any medication for “depression” and “anxiety” to which he said “I was sometimes given medication by a provider in Pakistan”. He did not elaborate. The Tribunal enquired whether he produced any medical opinion evidence in support of this assertion to which he said “I have nothing with me”.

18. The applicant declined an opportunity to add anything further to his application. The applicant’s evidence was vague and somewhat disjointed. None the less it is tolerably clear that he abandoned a diploma of accounting course in about February 2018 after his father had been hospitalised in Pakistan in about November 2017. He travelled to Pakistan perhaps in early 2018 and returned in April 2018. His enrolment was cancelled on 6 November 2017 and he was not enrolled in another course until 15 October 2018. The enrolment was apparently cancelled because the fees are unpaid, which he said was due to his father’s illness. However the applicant did not apply for deferral of the course nor did he apply to pay the fees in instalments. He said that he could not get employment in order to fund the course himself but produced no evidence or details of any attempts made by him to procure such employment.

19. The Tribunal accepts that the applicant’s father was unable to pay relevant course fees and that this probably occurred in early November 2017. Further, the Tribunal accepts that the applicant’s father was ill until at least the early part of 2018. However the applicant took no steps to defer the course or to pay the fees by instalment. It is reasonable to expect a genuine student to take steps to try and overcome an inability to pay course fees. Further the applicant’s evidence about his failure to fund the course himself was vague and most unconvincing. In the circumstances having regard to the totality of the applicant’s evidence the Tribunal is not satisfied that his reasons for not being enrolled were beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the Department

20. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

21. The Tribunal was provided with no evidence on this point and gives it little weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

22. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

23. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

24. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

25. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member