Rahman (Migration)

[2018] AATA 3608

Rahman (Migration) [2018] AATA 3608 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibtisam Rahman

CASE NUMBER:  1806325

HOME AFFAIRS REFERENCE(S):           BCC2017/4237821

MEMBER:Fiona Meagher

DATE:1 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 01 August 2018 at 6:06pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Inability to pay fees – Applicant’s father’s financial difficulty – Father’s unpaid salary – Father’s appointment letter – Applicant’s grandfather’s health – 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 22 February 2018 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 breached the condition of his Visa to remain enrolled in a registered course. 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 28 June 2018 to give evidence and present arguments. At the conclusion of the hearing the applicant asked for additional time to provide further information. The Tribunal at hearing granted the applicant until 11 July to provide further information, and upon his application to the Tribunal post hearing provided him with more time. On 26 July 2018 the Tribunal received a number of documents from the applicant.   

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. The delegate found that the applicant had not been enrolled in a registered course since 12 May 2017. This was submitted by the applicant and accords with the records held by the Department. 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

9. 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 Tribunal has also carefully considered all of the material and submissions provided by the applicant.

10. Prior to the hearing the Tribunal was provided with correspondence from the Hotel Oasis to Major Mustafizur Rahaman dated 26 March 2017, and referring to the hotel’s inability to pay Major Mustafizur Rahman his salary for March 2017. The Tribunal was also provided with a letter from the Major on Hotel Oasis letterhead directed to the International student advisor, Griffith University Australia, and dated 21 March 2017, also stating that due to the unstable political situation in his country, the economy had been negatively affected, and in turn he was unable to pay the fees for his son, the applicant in this matter. In that letter he asked to pay in instalments. After the hearing, on 26 July 2018 the Tribunal was provided with a letter of appointment from the Hotel Oasis to Major Mustafizur Rahman (undated), and a request for more time to provide further documentation evidencing ability to pay. At the third line made reference to the fact that the applicant will had faced a severe heart attack’s family was going through huge problem he was stressed and very upset and that his father had assured him he would send “solid documents” as soon as possible.

11. At hearing, the applicant told the Tribunal that he had initially enrolled in a bachelors degree in International Tourism and Hotel Management at Griffith University, and then changed to a bachelor of commerce. He said that he had passed all his subjects in both 2015 and 2016, and the Tribunal sighted a transcript that confirmed that. However, the applicant said that as his father was unable to pay his fees in 2017, and the University was not amenable to being paid in instalments, his certificate of enrolment was cancelled.

12. The applicant said that he would still like to finish his education, and that his father’s financial position is improving and he is able to provide evidence of that. It is in that regard that the Tribunal provided the applicant with time to provide evidence of his ability to pay, by for example, the provision of bank statements demonstrating the applicant solvency, and ability to pay his fees. In the first instance the Tribunal provided the applicant with 14 days after the date of hearing for the provision of information evidencing his ability to pay his fees. The applicant requested an extension of time in which to do that, and the Tribunal granted an extension of a further two weeks, meaning the material would be due by 25 July 2018. The Tribunal confirmed that information in a letter to the applicant.

13. As set out above, the only additional evidence provided by the applicant is the letter of appointment with respect to his father, which nominates a salary. However as also set out above, in the other letters provided by the applicant prior to the hearing, the applicant’s father’s salary has not been paid (notwithstanding the letter of appointment) and the letter of appointment does not amount to evidence satisfying the Tribunal of the applicant’s ability to pay his fees. The Tribunal notes that as of 1 August 2018 no further information as to the applicant’s ability to pay his fees has been received. Accordingly the Tribunal is not satisfied that the applicant has any means of paying his fees.

14. Based on the evidence given by the applicant, the Tribunal is satisfied that the purpose of the visa holder’s travel and stay in Australia was to study.

15. As to the applicant’s compliance with visa conditions, other than his failure to pay the fees, the Tribunal is unaware of any other incidents of non-compliance.

16. The Tribunal notes that the applicant and his family have already incurred costs in relation to the applicant’s education, and will no doubt be disappointed that he is unable to complete it. The Tribunal has also taken into consideration the fact that the applicant claims his grandfather has suffered a severe heart attack, although it notes it has no medical evidence before it in that regard. The Tribunal has sympathy for the applicant situation, both in relation to his grandfather’s health, and his father’s unpaid salary.

17. Further, the Tribunal has taken into consideration the fact that, as the applicant’s visa has Tribunal been cancelled, but he may have to wait some time to be granted another Visa to Australia.

18. In relation to the behaviour of the applicant towards the department, the Tribunal notes that the applicant, despite requesting an extension of time in which to do so, provided no response to the Notice of Intention to Consider Cancellation.

19. The Tribunal has taken into consideration all of these factors. However, given that there is no evidence before the Tribunal as to the applicant’s ability to pay the fees, the Tribunal finds that this heavily outweighs any hardship that the applicant or his family members may face because of the cancellation of his Visa, or any of the other matters canvassed above.

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

    DECISION

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

    Fiona Meagher
    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.