Rana (Migration)

[2019] AATA 2975

Rana (Migration) [2019] AATA 2975 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waqas Ali Rana

CASE NUMBER:  1703094

HOME AFFAIRS REFERENCE(S):          BCC2016/4205074

MEMBER:Mr S Norman

DATE:13 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 May 2019 at 4:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – can obtain work commensurate with his skills in Pakistan – health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 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). The Department delegate’s decision was not lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2)(a) – enrolment. 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 8 May 2019 to give evidence and present arguments.

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. At the hearing, the following information was put to the applicant for comment pursuant to s.359AA of the Act (the applicant did not request further time to comment). The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 27 August 2012. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 9 January 2017[1] & 30 January 2017,[2] the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 23 May 2016. The applicant was advised it appeared he may have breached condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act. The delegate recorded that no response was received to the NOICC letter.

   [1] Department – folio 14.

   [2] Department – folio 20.

9. At the Tribunal hearing, the applicant confirmed he was not studying or enrolled for the length of time identified in the NOICC.

10. Therefore, and 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

11. 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’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, at hearing he conceded that after travelling to Australia (he said in late 2012) he had completed a brief English language course, but he had not completed any other course. He said his registration for a Diploma of Marketing was cancelled in May 2016 (at hearing he confirmed he did not successfully complete any course in Australia, after his English language course), and he was unable to enrol in a Diploma of Accounting in late 2016. With the Tribunal, the applicant had lodged a Letter of Offer for an International Student at TAFE Australia (course scheduled to commence 30/01/2017[3]). Though at hearing, the applicant also then conceded he had not studied in Australia since his enrolment expired in his last course on 23 May 2016. The Tribunal accepts this to be correct. After then considering all the accepted evidence herein, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study.

    [3] Tribunal – folio 7.

13. Regarding the extent of compliance with visa conditions, given the applicant had not been enrolled in a registered course of study since 23 May 2016, and given he conceded at hearing that he had not studied in Australia, at least from that date, the Tribunal is satisfied the applicant’s breach of his Student visa condition is substantial.

14. Regarding the degree of hardship that may be suffered by the applicant or his family if his Student visa is cancelled, at hearing he said (words to the effect) he would not be able to remit monies to his family in Pakistan if his visa is cancelled. He said his father had recently retired (in the last seven months – after working as a mechanical engineer) and his four married sisters all lived away from his home area in Pakistan (being Multan City, Punjab – 200/300kms south west of Lahore). His father remained in Multan city and the applicant was able to remit monies to his father (AUD600-1,000 per month). When then asked, the applicant said he had worked in a money exchange in Sydney (earning approximately $1,500 per month), since late 2012 up to the date of the Tribunal hearing (8 May 2019). 

15. When the Tribunal advised it may not accept it was plausible the applicant was able to remit this amount of money to his family in Pakistan if he only worked 20 hours per week, he said this was none-the-less true. He said he lived in a shared home (with four other persons) and the costs of his residence and cost of living were minimised.

16. Be that as it may, the applicant also feared he would not find work in Pakistan. The Tribunal said at hearing that country information indicated that Pakistan had a reasonable economy and that he may study in Pakistan. The country information stated:

    Pakistan has the world’s 26th largest economy and seventh largest labour force. The World Bank classifies Pakistan as a lower-middle-income country, with per capita gross national income of around USD 1,500 (2016).

    and:

    Article 25A of the Constitution states that the ‘State shall provide free and compulsory education to all children of the age of five to sixteen years,’ but low budget allocations, lack of capacity and corruption affect the quality and availability of education. Education expenditure in Pakistan amounted to 2.8 per cent of GDP in 2017, compared with the South Asia regional average of 2.5 per cent (2016), and 5.2 per cent (2014) in Australia. Provincial governments are responsible for education services, and budget allocations and quality vary greatly across the country.

17. The now 32 year old applicant conceded he had worked as an Assistant Accountant in Pakistan (for about three years) prior to departing in late 2012. The Tribunal also notes that with respect to tertiary education in Pakistan, the applicant conceded that he had been studying a Bachelor of Commerce degree in Pakistan prior to departing.

18. That being said, and though the applicant may not earn in Pakistan, the monies he apparently earns in Australia (in a money exchange shop), the Tribunal is satisfied the applicant could obtain work commensurate with his skills in Pakistan. Further, the Tribunal understands the applicant’s father had retired some seven months prior to the Tribunal hearing. However, nothing the applicant said satisfied the Tribunal the applicant could not recommence studies in Pakistan (the applicant’s health is discussed below), or obtain work commensurate with his skills in Pakistan.  

19. As the applicant claimed at hearing, the Tribunal also accepts that education in Australia may be more prestigious and allow the applicant to engage in better work in Pakistan. However, given his lengthy periods of non-study in Australia, and for all the reasons set out herein, I am not satisfied the applicant is a genuine student or that he wishes to continue to study in Australia.

20. Next, and regarding the circumstances in which the ground for cancellation arose, the applicant referred to being diagnosed with ankylosing spondylitis at the start of 2013 (no corroborating evidence was lodged, but after speaking with the applicant, the Tribunal proposes to accept this is correct). When asked why he did not return to Pakistan at that time in order to seek medical treatment, he said that at that time it was ‘not too bad’. It gradually became worse around 2014/2015. The information before the Tribunal included that:

    Ankylosing spondylitis (AS) is a type of inflammatory arthritis that mainly affects the spine. Symptoms of AS include back pain, stiffness and reduced mobility in the spine. Ankylosing spondylitis commonly affects the sacroiliac joints. These joints connect the base of the spine (sacrum) to your pelvis.[4]

    [4] See ‘Ankylosing spondylitis’, Victoria State Government, Better Health Chanel, , accessed 8 May 2019. 

21. There are a number of surgical and non-surgical treatments for this condition. The non-surgical treatments include:

    Nonsurgical treatments: Physical therapy, chiropractic manipulation, and stretching exercises help many patients. Some patients may require oral anti-inflammatory medications or topical patches, creams, salves or mechanical bracing.[5]

    [5] See ‘Ankylosing spondylitis’, Victoria State Government, Better Health Chanel, , accessed 8 May 2019. 

22. At hearing, the applicant said he was taking two prescribed medications in Australia (he said they were pain medications). The Tribunal then noted that country information may satisfy it that though health services in Pakistan may be less sophisticated than those available in Australia, the health services in Pakistan may still be adequate for his needs. For instance, the country information stated:

    2.22 Basic health care in Pakistan is free, but limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility.

    and:

    2.26 Average life expectancy at birth in Pakistan is approximately 68 years (2018), compared to an average of 69 years (2016) across South Asia and 82 years (2018) in Australia. The elderly and people living with a disability have limited access to health care and to enabling devices to improve quality of life. Significant social stigma associated with disability in Pakistan further limits access as many families will not seek help outside the home…

    2.27 Wealthier Pakistanis have access to better quality private health care. Rural areas have poorer access to health care services, compounded by a lack of infrastructure and transport facilities… [6]

    and:

    Prices of medicines in private pharmacies in Pakistan are generally lower than in other developing countries, but higher than in India.[7]

    [6] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 20 February 2019.

    [7] Prices, availability and affordability of medicines in Pakistan, August 2006, p.1, accessed 8 May 2019;

23. When discussed at hearing, the applicant referred to inadequate medical care for his mother in Pakistan (she had suffered a heart condition and had passed away from cancer). However, the Tribunal noted the applicant did not suffer any of the conditions suffered by his mother. Further country information indicated that ankylosing spondylitis is treated in Pakistan, though the treatment may not be as prevalent as it is in Australia (particularly in rural areas in Pakistan – but the applicant and his family resided in cities in Pakistan).[8] Therefore, based on the evidence, the Tribunal is satisfied the applicant could access treatment for his condition in Pakistan (he also said at least one sister lived in Islamabad).  

    [8] For instance, see Dr Saliha Ishaq, South City H, accessed 8 May 2019; and ‘Best Physiotherapists For Ankylosing Spondylitis In Multan’, Marham, accessed 8 May 2019.

24. Further, though the applicant may suffer the condition he claimed (Ankylosing spondylitis), at hearing he said this commenced (and he was diagnosed in early 2013), that he did not return home at that time for treatment as it was ‘OK’, that his condition deteriorated and became particularly bad in 2014/2015. However, at hearing the applicant also conceded that he had not undertaken any study in Australia since May 2016 (he had attempted to gain enrolment in a Diploma of Accounting in late 2016, but he could not afford the school fees). He also said that since arriving in Australia, he had not successfully completed any course of study (except for a basic English language course he had undertaken soon after he had arrived in Australia).  

25. Furthermore, and though the applicant is claiming that his health caused him to cease his studies, he said that he was none-the-less able to work consistently (allegedly 20 hours per week) from late 2012 up to the date of the Tribunal hearing (being 8 May 2019). When discussed at hearing, the applicant then said he sat at a shop front desk and exchanged Australian currency for foreign currency. He said he may sometimes work less than 20 hours per week (though when this was discussed at the commencement of the hearing, he appeared to be certain he worked around 20 hours per week). He also said a friend drove him to and from work, but he conceded, that he was unable to arrange for anyone to drive him to his College to study.

26. The Tribunal then noted that he had claimed at hearing to have earned around AUD$1,500 per month, but was still able to remit between AUD$600-AUD$1,000 per month to his family in Pakistan. The Tribunal said it may not appear plausible he could pay his residence and other expenses in Australia, and still remit the monies he claimed to Pakistan. Later in the hearing, the applicant also said he attempted to gain enrolment in a Diploma of Accounting in late 2016 (no corroborating evidence lodged). Even if the Tribunal accepts this was true, the applicant said he was unable to commence as he could not pay the school fees.

27. Be that as it may, based on the evidence the Tribunal is not satisfied the applicant’s health prevented him from continuing his studies in Australia, and that his claims to the contrary are false. If he could not walk or care for himself as he had claimed, I am satisfied he would not have the capacity to have engaged in ongoing work in order to continue to remit monies to his family in Pakistan (he said he was the main financial supporter of his family). I am satisfied his principal if not sole reason for wishing to remain in Australia, is for the purposes of work.  However, the applicant had previously worked in Pakistan as an Assistant Accountant at a named business, and though he may not earn the amount of money he said he earnt in Australia, I am satisfied he could obtain work commensurate with his skills in Pakistan.

28. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Based on all the accepted evidence herein, the Tribunal is not satisfied the applicant has a compelling need to travel to or remain in Australia.  

29. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. However, the applicant did say he suffered from ankylosing spondylitis, and this might be perceived as a disability for which he may suffer social stigma in Pakistan (the Tribunal did not wish to make his case, but though discussed generally, he made no claim to fear harm for this reason on return to Pakistan). If the applicant’s evidence indicates a protection claim, then the Full Federal Court has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an alternative visa application (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015). The Tribunal understands each case needs to be considered according to its merits, however in the present case, I am satisfied that any protection claims could be better canvassed in an alternate visa process. 

30. Next, if the applicant’s visa is cancelled, he would become an unlawful noncitizen and liable to be detained under s.189 and removed under s.198 of the Act. However, none of the evidence indicates that he would be subject to indefinite detention in Australia. Further, the Tribunal believes he could retain (at least temporarily) his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

31. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (being three years from 16 February 2017).  

32. After then considering all the accepted evidence, the Tribunal is not satisfied (ie) that the applicant is presently a genuine student in Australia (notwithstanding his claims to the contrary), or that he ceased his studies (in May 2016) for any of the reasons he claimed. I am not satisfied there is any accepted evidence that should prevent the Tribunal from exercising the discretion to cancel the applicant’s Student visa.

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

    DECISION

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

    Mr S Norman
    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.