Rameez (Migration)

[2019] AATA 1709

Rameez (Migration) [2019] AATA 1709 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raja Rameez

CASE NUMBER:  1702670

HOME AFFAIRS REFERENCE(S):           BCC2016/3708766

MEMBER:Wendy Banfield

DATE:29 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2019 at 1:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – vicissitudes of life – substantial period of non-compliance – 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 10 February 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 had not maintained enrolment in a registered course of study as required by the conditions 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.

   Background

3. The applicant is a citizen of Pakistan and is currently 25 years old. On 30 October 2015 he was granted a Subclass 573 Student Visa to study a Master of Business Administration. In 2013 he had completed a Bachelor of Commerce at the University of Canberra. The applicant began his post-graduate studies in November 2015 but did not continue which resulted in his enrolment being cancelled on 3 March 2016.

4. Prior to the hearing the applicant submitted the following evidence:

   ·     Representative’s submission dated 27 May 2019;

   ·     Statutory declarations of Farooq Nadeem and Hassan Sardar Shahbaz dated 22 May 2019 and Muhammad Imran Qureshi dated 24 May 2019;

   ·     Statement of the applicant’s father Muhammad Sadiq, undated;

   ·     Application form in reference to Qaiser Iqbal, untranslated;

   ·     Documents in relation to the applicant’s previous migration agent including a request for an extension of time submitted to the Department dated 3 February 2017;

   ·     Requests for access to document dated 29 April 2019;

   ·     Offer of financial support and proof of income from Tanveer Mehmood dated 24 May 2019;

   ·     Offer letter from Group Colleges Australia dated 16 May 2019;

   ·     Application and grant of Bridging Visa E dated 25 and 27 May 2019;

   ·     University of Canberra certificate and transcript for the award of Bachelor of Commerce to the applicant dated 25 September 2013.

5. The applicant appeared before the Tribunal on 28 May 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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?

9. 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).

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

11. The applicant gave evidence that he had been enrolled to study in Australia but due to personal difficulties, he had not been able to continue. He did not dispute that while holding a Student Visa, he had not been enrolled to study for the relevant period, 3 March 2016 to 19 January 2017 when a Notice of Intention to Consider Cancellation (NOICC) was issued 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

12. 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 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

13. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

14. During the Tribunal hearing the applicant was asked whether he considered he had a compelling need to remain in Australia. The applicant referred to his previous migration agent who he said did not advise him properly at the relevant time. He also declared his only intention in Australia is to get a better education. The applicant claimed he could not or did not pursue post-graduate studies in his home country because the level and quality of education is completely different.

15. The Tribunal finds the applicant’s claims of poor representation by a former migration agent after receiving the NOICC from the Department does not account for his failure to maintain enrolment at the relevant time and is not relevant to whether the applicant has a compelling need to stay in Australia. The Tribunal is not satisfied the applicant has demonstrated he has a powerful or convincing reason for needing to stay such that the visa should not be cancelled. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and places no weight on the applicant’s claims.

    ·     the extent of compliance with visa conditions

16. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

17. The applicant was invited to make submissions about the degree of hardship that would result from his visa being cancelled. The applicant said cancellation of his visa would have a huge effect because his father had paid for his education and wants him to complete it. He said if he goes home to Pakistan now it will have an impact on his parents as they want him to be successful. The Tribunal accepts there may be a certain degree of hardship resulting from the visa being cancelled and gives some weight to the applicant’s claims in this regard.

18. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

19. Condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course. This is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, including temporary gaps in enrolment. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of 10 months. The applicant gave a number of reasons for this. He claimed his cousin was killed in a car accident in Pakistan on 2 February 2016. The written submission by the representative states the applicant did not provide a death certificate immediately as it takes time to obtain. An untranslated copy of a document from Pakistan, described as an application for a death certificate was provided instead. The applicant submitted statutory declarations from friends who attest to the applicant having been affected by the death of a relative in early 2016 and the Tribunal places some weight on these statements. The applicant also claims that at the relevant time in early 2016 his father had to retire from work due to health problems and the family farm was adversely affected by drought. These issues meant the applicant was unable to pay his tuition fees and he became depressed and withdrawn.

20. The Tribunal accepts the applicant may have experienced some personal problems at the relevant time including the death of a relative in 2016. There is no independent evidence that he sought assistance from his education provider in this regard or that he was treated for depression. The applicant gave evidence at the hearing that following cancellation of his enrolment, he stayed in Australia in the hope he would be able to get financial support from other family members. He said he worked part-time in order to meet his daily expenses but was unable to pay his own study fees due to the work restriction of 20 hours per week. He advised his parents were not educated and wanted him to complete his studies. The Tribunal is not satisfied the applicant had a valid reason to remain in Australia for 10 months in breach of his visa conditions. Student visas are granted to enable people who are not Australian citizens or permanent residents to undertake study in Australia and do not permit visa holders to remain in Australia for any other reason.

21. The Tribunal considers the issues faced by the applicant are part of the vicissitudes of life that many people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the mandatory conditions of his student visa and failing to seek compassionate leave or formally postpone his studies until he was able to continue. For these reasons, the Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited overall weight on the circumstances in which the ground for cancellation occurred.

22. In the written submission dated 27 May 2019 the applicant’s representative sets out difficulties the applicant faced following the receipt of the NOICC from the Department due to poor representation and advice by a previous migration agent. The Tribunal has taken note of the claims put forward but does not consider it relevant to the reasons for the applicant’s visa being cancelled which was his failure to maintain enrolment in breach of visa conditions. The applicant has since had the opportunity to present his case before the Tribunal and it appears he had the benefit of sound representation in this regard.

    ·     past and present behaviour of the visa holder towards the department

23. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.

    ·     whether there would be consequential cancellations under s.140

24. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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 evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

27. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

28. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

29. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.