RAZA (Migration)

[2019] AATA 4108

RAZA (Migration) [2019] AATA 4108 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ALI RAZA

CASE NUMBER:  1706170

HOME AFFAIRS REFERENCE(S):           BCC2016/4316358

MEMBER:Brian Camilleri

DATE:3 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 September 2019 at 12:15pm

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 – purpose of visa not fulfilled – father’s health condition – loss of financial support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Maan v MIAC (2009) 179 FCR 581

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection (Department of Immigration and Border Protection) (DIBP) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for the purposes of s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

3. For this requirement, it is the certification by the education provider as to breach of its course progress policies, and not the unsatisfactory progress itself that constitutes the breach of condition: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].

4. The delegate of the Minister cancelled the visa on the basis that the applicant did not meet the requirements of Condition 8202(2) (a).

5. The applicant filed an application for review of the delegate’s decision and appeared before the Tribunal on 3 April 2019 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter fluent in the languages of the applicant namely, Urdu and English. The applicant was supported at the hearing by his representative, a solicitor.

6. 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

7. As stated above, 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). The event of a breach has the consequence that pursuant to s.116 (1) (b) of the Act, the visa may be cancelled.

   Compliance with Condition 8202

8. 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).

   On the facts outlined below and the admissions of the applicant outlined below the Tribunal finds that the applicant has not complied with Condition 8202 of his student visa.

   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. However, 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’

   PART C: GROUND(S) FOR CANCELLATION

10. It came to the department’s attention that the applicant may not have complied with condition 8202 imposed on the Student visa. The applicant was notified of the intention to consider cancellation (NOICC) on 21 February 2017 (i.e. if the applicant did not comply with Condition 8202 then his visa was liable to be cancelled).

11. The notice invited the visa holder to respond in writing. The Department (DIBP) received a response on 15 March 2017.

12. s116 (1) (b) provides:

    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a)…..

    (b) its holder has not complied with a condition of the visa;

    Condition 8202 states:

    (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.

13. Based on evidence available in the Provider Registration and International Student Management System (PRISMS), the applicant has not been enrolled in a registered course of study since 20 April 2016. Condition 8202(2) (a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course. At the hearing a contemporary copy of the PRISMS record was provided to the applicant and its contents discussed. Having heard the evidence of the applicant outlined below given at hearing on 3 April 2019 and examined all of the documentation in the Departments and submitted to the Tribunals, the Tribunal is satisfied the applicant does not meet the requirements of condition 8202(2) (a) and that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116 (1) (b) breach of condition - 8202 of the Act (subject to the exercise of discretion as outlined below.

    PART D: DECISION WHETHER TO CANCEL

    Assessment of relevant factors

14. The applicant provided (both in his response to the NOICC on 12 March 2017 and in oral testimony before the Tribunal on 3 April 2019) the evidence of the circumstances by which the conditions of his visa were breached and the reasons why he wished to continue to remain and to continue studying in Australia. Taking into account the provisions outlined above, the Tribunal have made its decision and exercised its discretion with regard to several relevant factors set out below.

    The purpose of the applicant’s travel to and stay in Australia.

15. The applicant was granted the student visa on the basis that he was enrolled in the following fulltime registered course of study:

    ·     Coe Code 759C9620 IEL TS Preparation (Level 1, Level 2, Level 3) (Intermediate to Advanced) (2 to 30 weeks);

    ·     CoE Code 759C9620 IEL TS Preparation (Level 1, Level 2, Level 3) (Intermediate to Advanced) (2 to 30 weeks);

    ·     CoE Code 7598C265 Bachelor of Business (Accounting).

16. Since being granted a TU-573 Higher Education Sector visa and since arriving in Australia on the visa, the applicant completed just two registered courses being English for Academic Purposes (Pre-EAP, EAP1 and EAP2) (Intermediate to Advanced) (10 to 30 weeks) course on 19 February 2016. He has remained onshore (without studying) since he completed these studies.

17. On 20 April 2016 that the applicant’s enrolment in the Higher Education Sector course, Bachelor of Business (Accounting) was cancelled and consequently the purpose for which the visa was granted terminated on that date.

    The extent of compliance of the applicant with any conditions subject to which his visa was granted

18. After the applicant was granted the TU-573 Higher Education Sector visa and arrived in Australia he has only completed two ELICOS registered courses outlined above and failed to comply with condition 8202 of his student visa when he failed to maintain enrolment in a registered course of study.

19. At the Tribunals hearing on 3 April 2019 the applicant was provided with a copy of the then current record of the Provider Registration and International Student Management Systems (PRISMS). It showed and the applicant did not hold a current Certificate of Enrolment in a CRICOS registered course of study with an education provider in Australia or provisionally for a future date. The applicant did not dispute this fact.

    The degree of hardship that may be caused to the applicant or the applicant’s family members

20. In response to the NOICC issued on 12 February 2017 by the Department and prior to the cancellation of his visa 20 March 2017 by the delegate of the Minister, the applicant provided information relevant the degree of hardship that may be caused to him.

21. In evidence at the hearing on 3 April 2019 the applicant explained that he was the first person in his family to seek a tertiary degree. The applicant confirmed that (apart from his English studies) he did not undertake any further studies and asserted that the fact that his visa was cancelled in 20 March of 2017 made it impossible for him to gain tertiary re-enrolment. He did not claim to have obtained or attempted to obtain provisional enrolment.

22. Originally, the applicant aspired to be a teacher of children. But when asked why (therefore) he had enrolled in Business Accounting course, and not a teaching course, the applicant explained that he had tutored young children in Maths and Science before coming to Australia but decided that a degree in Business Accounting from an Australian university would be more practical and financially rewarding than obtaining a teaching degree.

23. The applicant stated that finding any job in Pakistan would be difficult but he presented no evidence of this difficulty. The applicant conceded he could work with his brother (albeit that is not his preference) in the family’s butcher business. The applicant’s father no longer participates directly in the family business.

24. The Tribunal accepts that without an Australian tertiary qualification the applicant may/will find it more difficult to gain the kind of employment he otherwise would have obtained had he qualified from his proposed Australian studies. The Tribunal considers that whilst not being able to complete studies in Australia may involve a setback it does not accept the submission that he would not be able to re-establish himself in his home country especially given a connection to a family business and the consequent degree of hardship is not such overriding consideration as to justify waiving noncompliance with the conditions attached to his visa.

    The circumstances in which the ground for cancellation of the higher education student visa arose

25. In his response to the NOICC in February 2017 the applicant provided number explanations of how his circumstances arose and how he came to breach the conditions of his visa. At an early point in time, his father became ill and was unable to continue to financially support the applicant’s studies.

26. It appears that the collapse of his father’s health led to a collapse of his father’s business and the applicant’s financial lifeline in Australia and he did not receive the support he had expected. He claimed to have come near destitution as he was fined (he stated) on 5 occasions for traveling on public transport in breach of his Opal Card conditions as he had no money.

27. The applicant became stressed and ill as a result of his father's illness and his own circumstance now that support was not forthcoming from home. The applicant submitted a psychologist report and other documentation. The applicant was eventually diagnosed with 'Adjustment Disorder' and 'mixed Anxiety and Depression.  There is no documentary evidence of his illness prior to that period.

28. The earliest medical evidence is dated 12 March 2017 (just after the department had issued an NOICC and a few days prior to the cancellation of his visa by the delegate of the Minister on 20 March 2017). In the 18 months prior to the hearing before the Tribunal on 3 April 2019 he stated he was employed (on a commission paying basis).

    The circumstances in which the grounds of cancellation arose

29. The Tribunal notes that all of the explanations advanced to the delegate of the Minister in February 2017 prior to the cancellation of the visa were again repeated at the hearing before the Tribunal on 3 April 2019. The Tribunal accepts these explanations as truthful but also considers that the circumstances above do not adequately explain his noncompliance or justify that circumstances were out of his control.

30. The Tribunal notes that there was no information provided as to when the applicant first sought help for this medical condition but given his other related evidence of severe financial constraints the Tribunal accepts it unlikely that the sought medical assistance immediately upon falling ill. He decided he should just cope with it.

31. The Tribunal accepts that his financial circumstance was an immobilizing and distressing condition. It is at that time the student should have taken steps to clarify any consequences to the compliance with the terms of his visa that may result from his medical or financial changes. The Tribunal accepts it as a contributing factor to his significant condition which put him into poor psychological state but the Tribunal also notes that illness is a considerable time past.

32. The Tribunal does not consider that the fact that the reports were produced and dated 18 months after the onset of his psychological condition that in any way reflects inconsistency in his story. The Tribunal accepts that March 2017 was the first time he sought evidence and he had (prior to that period) been battling his medical condition on his own without much success.

33. Nevertheless the Tribunal considers that it is reasonable to have expected that if the applicant felt that he was unable to continue enrolment in a registered course of study due to his circumstances, that he could have applied for deferment of any further studies with his education provider for compassionate or compelling circumstances and/or alternatively returned to his home country rather than remain in Australia in continued non-compliance of his visa conditions.

34. The Tribunal considers that it was the responsibility of the student visa holder to contact the department before taking any action to significantly change his or her circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing studies at all). According to departmental records, at no time did the applicant contact the department for this purpose. The applicant confirmed this in evidence on 3 April 2019.

35. In giving his evidence at the hearing the applicant conceded that he did not seek a deferral from his education provider for compassionate or compelling circumstances. When questioned as to why he had not done this, he explained that he was the first in his family to seek a degree from a university and there was no one available to advise him.

36. The Tribunal considers that given that the applicant has remained in Australia already for  a number of years and only completed two registered course of study, it does not see that setting aside the decision of the delegate of the Minister is going to assist the applicant (at this time) in obtaining a higher education qualification.

37. In summary, the Tribunal does not accept that the circumstances that led to him to cease studying and not complying with the condition attached to the visa, and the grounds for cancellation arising, were due to circumstances that were beyond his control.

    The applicant’s past and present behaviour towards the department.

38. The applicant has been cooperative in providing information to the department when requested of him. There is no evidence to indicate he has not complied with previous visa conditions or that he has not been co-operative with the Department. This weighs in favour of the visa holder.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

39. No other person currently holds a visa dependent on the applicant retaining his student visa. The cancellation of the applicant’s student visa would not result in the automatic consequential cancellation by operation of law under section 140 of the Act, of the visa of any other person. The Tribunal gives weight to this consideration in the in favour of cancelling the visa..

    Legal consequences of a decision to cancel the visa

40. The cancellation of the visa would bring about the consequence that the applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart Australia.

41. In addition, section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia and would need to depart Australia and apply from overseas to pursue most types of further visa applications.

42. If the Tribunal decides to cancel the visa then this will incur a penalty in that if the applicant lodges a new visa application then that requires the applicant to meet Public Interest Requirement 4013, and an application may not be made in less than 3 years after cancellation unless there are compelling circumstances.

43. The applicant is a citizen of Pakistan with a travel document enabling him to return there if he has to depart Australia. The statutory consequences when a visa is cancelled under these grounds are:

    ·     If the TU-573 Higher Education Sector visa is cancelled, the applicant will not necessarily be immediately removed from Australia.

    ·     The applicant would be eligible to apply for a Bridging Visa E to allow him reasonable time to arrange to depart Australia.

    ·     There is no evidence that the cancellation of the applicant’s TU-573 Higher Education Sector visa would lead the applicant to being held in detention; or that indefinite detention is a possible consequence of cancellation of the student visa.

    ·     Whilst a failure to depart Australia could nevertheless ultimately result in detention or removal action, it is not an inevitable consequence of any decision to cancel his visa.

    ·     There is no evidence that the cancellation would impact on any victims of family violence.

    Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s student visa

44. Cancellation of the applicant’s student visa will not result in engaging Australia's international obligations.

    Are there children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation?

1. In evidence the applicant confirmed that he does not have any children in Australia (or elsewhere). He is single and has never been married. Therefore this factor has no bearing on the decision whether or not to cancel the student visa.

   Does cancellation lead to removal in breach of Australian's non refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment?

2. The applicant has not made claims of being in need.of protection nor has he applied for protection. There is no matter or claim before the Tribunal to suggest that his removal, if necessary, would lead to a breach of Australia's non-refoulement obligations.

   Other relevant factors assessed

3. All factors identified above as relevant were considered. Having considered the evidence, the Tribunal is satisfied it has considered all the relevant additional factors.

   PART E: DECISION

4. The Tribunal is satisfied there is a ground for cancelling Mr. Ali RAZA's Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa and that the grounds in favour of cancelling the visa outweigh the grounds for not cancelling the visa.

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

   DECISION

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

   Brian Camilleri
   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.