Qamar (Migration)

[2019] AATA 3062

Qamar (Migration) [2019] AATA 3062 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bilal Qamar

CASE NUMBER:  1718978

HOME AFFAIRS REFERENCE(S):          BCC2017/2284476

MEMBER:Joseph Lindsay

DATE:1 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2019 at 11:32am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – education provider moved campus – family’s financial difficulties – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 360
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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 review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 20 March 2019 at 2:30pm. On 1 March 2019, the applicant’s appointed representative responded to the Tribunal indicating that the applicant had departed Australia and requested the Tribunal to make the decision based on the available information to the Tribunal. Based on the response from the applicant’s appointed representative, the Tribunal finds that it may make a decision on the review. The applicant’s appointed representative provided a copy of the delegate’s decision to the Tribunal. 

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.

8. In his application for review, the applicant provided a copy of the decision record from the Department that found the applicant had not been enrolled in a registered course of study for the period 26 October 2016 to 26 June 2017. In the response the applicant provided to the Department dated 27 July 2017, he did not dispute these facts.

9. 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)(a).

   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.’

    The circumstances in which the ground for cancellation arose

11. The Tribunal accepts the information that the applicant provided to the Department in regard to the circumstances in which the ground for cancellation arose, that are:

    - the applicant stated that he has completed more than 50% of his degree and has already commenced working on his final year project, and wishes to continue to study.

    - the applicant stated that he has a job offer in his home country after he finishes his degree.

    - the applicant started studying at a campus in Melbourne, but the course moved to Ballarat campus and he had to travel to Ballarat four times per week, which took two hours each way.

    - the applicant stated was unable to move to Ballarat.

    - in 2016 the applicant commenced looking for another university in Melbourne.

    - in 2016 the applicant was unable to pay his university fees.

    - the applicant stated his father's financial situation is not bad, but in 2014 had to undergo an operation and not work for about one year.

    - the applicant stated that because of stress he could not continue his studies.

12. The Tribunal places low weight on the applicant’s information as to why he failed to maintain his course enrolment.

13. The Tribunal places high weight on the fact that the applicant did not contact the department before they took action to cease their studies without obtaining alternative enrolment or not commencing further studies and to clarify any consequences that may result from such a change.

14. The Tribunal places low weight on the fact that the applicant in his NOICC response stated that he was under immense stress during 2016 and couldn't continue his studies and that he had to travel two hours each way, four days per week to attend classes.

15. The Tribunal does not accept that that the circumstances that led to the applicant ceasing his studies after he was granted the visa; and becoming non-compliant with a visa condition by not maintaining enrolment in a registered course, were due to circumstances that were beyond his control.

16. The Tribunal places low weight on the applicant’s assertion that his father had to undergo an operation in 2014, which meant that he could not work for one year, which affected the applicant’s ability to pay his fees. However, if there were extenuating circumstances, it is reasonable to have expected the applicant to obtain a deferral with his education provider during the period 26 October 2016 - 26 June 2017 for compassionate or compelling circumstances, or to return to his home country. The Tribunal finds that there is no evidence to indicate that the applicant sought or was granted a deferral from study.

17. The Tribunal finds that it is reasonable to expect that the applicant was aware when he was granted the visa, that it had condition 8202 imposed on it.

18. The Tribunal finds that when the applicant did not maintain his course enrolment in a registered course, he would have been reasonably aware that he had become in breach of one of the conditions attached to his student visa, and that this would have impacted on his eligibility to continue to hold the student visa.

19. In consideration of the above, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    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

20. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

21. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

22. The applicant did not provide information in regard to the hardship that may be caused to him if his student visa was cancelled. Given that the applicant has departed Australia, the Tribunal finds that the applicant has not experienced any hardship as a result of his student visa being cancelled. The Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

24. There is no evidence that there are any dependants attached to the applicant’s student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

25. There is no evidence that the applicant is not aware of the legal consequences of the cancellation of his student visa. Given that the applicant has departed Australia, the Tribunal places no weight in the applicant’s favour in respect to this consideration.

    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

26. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

27. There are no other relevant matters before the Tribunal.

    Conclusion

28. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 2 June 2016.

29. The Tribunal finds that the applicant has not been enrolled in a registered course of study during the period 26 October 2016 - 26 June 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

30. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.