Rehman (Migration)

[2023] AATA 701

Rehman (Migration) [2023] AATA 701 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saif Ur Rehman

REPRESENTATIVE:  Mr Sujeevan Kumar Peru (MARN: 1909662)

CASE NUMBER:  2207648

HOME AFFAIRS REFERENCE(S):          BCC2022/267327

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 January 2023 at 10:45 am (NSW time)

DATE OF WRITTEN RECORD:                22 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 February 2023 at 11:19am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – no response to department’s notice of intention to consider cancellation – breach of condition conceded – discretion to cancel visa – non-commencement and cancellation of original enrolment and study at lower level – claimed deaths of grandparents not supported by documentary evidence – part- and full-time work – recent enrolment in new course – inconsistent and unimpressive oral evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), r 2.55, Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who cancelled the applicant’s Student TU 500 Visa under Sec 116(1)(b) of the Migration Act (the Act).

2. The Delegate cancelled the visa on 17 May 2022 on the ground that the applicant had not complied with condition 8202 because he had not been enrolled in a registered course of study since 5 July 2021. 

3. At the conclusion of the hearing on 20 January 2023 the Tribunal made an oral decision and gave an oral statement of reasons for the decision.

4. More recently the applicant has requested the Tribunal at regular intervals to provide a written reduction of those reasons.

5. What follows is the requested record.

   STATEMENT OF DECISION AND REASONS

   Introductory aspects

6. The only issue on this review is whether the visa should be cancelled. The applicant accepts that he has been in breach of condition 8202 since 5 July 2021 and that there was accordingly a ground for cancellation of his visa. He has given reasons why his visa should not be cancelled.

7. On 19 April 2022 the Department sent to him a Notice of Intention to Consider Cancellation of his visa (NOICC) which invited him to comment on the apparent breach of condition 8202(2)(a) arising from his non-enrolment in a registered course of study as from that date and to give reasons why his visa should not be cancelled. 

8. The NOICC indicates that the delegate was considering the cancellation of his visa under section 116(1)(b) of the Act. The applicant did not respond to the NOICC. A finding to that effect was made in the delegate’s decision and is readily apparent from the other documents in the Department’s file to which the Tribunal has seen. The applicant does not contend otherwise. Indeed, in his oral evidence at the hearing today the applicant accepted that he received a copy of the NOICC on 19 April 2022. He also accepted that he received a copy of the Notice of Cancellation of his visa (NOC) on 17 May of that year.

9. The Review Application was filed on 25 May 2022 and is, therefore, within time.

10. At that time the applicant also filed an Application for a Fee Reduction, together with some other documents in support of the review, namely a copy of his passport, a copy of the NOICC, a copy of the NOC, and a copy of the delegate’s reasons for having cancelled the visa. 

11. For the following reasons the Tribunal has concluded that the decision of the delegate to cancel the applicant’s visa should be affirmed.

    Procedural and certain other aspects in the review

12. On 2 June 2022 the Tribunal wrote to the applicant acknowledging receipt of the Review Application and inviting him, among other things, to provide any further information in support of his case as soon as possible. 

13. The requested fee reduction was rejected by the Tribunal on 15 June 2022. In the Tribunal’s letter of that date the applicant was informed that his application had been refused because he had deliberately withheld information regarding his financial circumstances and that, consequently, the severe financial hardship threshold was not met. The applicant accepted today in his oral evidence that he had paid the filing fee of $3000 on a credit card and that he had not disclosed the existence of that resource to the Tribunal. He also accepted that this omission had been intentional.

14. Viewed in isolation that is not a matter which I regard to be significant to the assessment of his overall credit but, taken in conjunction with other unsatisfactory aspects of his case, it is a matter which I need to consider, to the extent to which it is relevant.

15. In December 2022 the applicant requested on two separate occasions that the Tribunal give him priority in the listing of this case for hearing on the basis that he wanted to know where he stood. The Tribunal responded to these requests by informing him that his case had been constituted and that he could expect a hearing in mid-January of this year.

16. The Hearing Invitation was sent to him on 22 December of last year and was accepted by him on 4 January of this year when he filed a completed Response Form in which he indicated that he did not intend to rely on any documents.

17. On 19 January this year, that is yesterday, at some stage in the afternoon his representative filed a bundle of additional documents in support of his review case. I will return to have a closer look at these later in these reasons. It is sufficient for me to note at this stage that the documents which he provided yesterday consist of a submission of about one page in length which the applicant has apparently written; a statement from him which addresses the GTE criterion; supporting affidavits from his parents relating to their financial circumstances and their willingness to sponsor the applicant’s study in Australia; copies of rental agreements referred to by his parents in those affidavits; and a valuation of some land in which the applicant apparently has an interest. 

18. There is a Valuation Certificate dated 5 January 2023 which indicates that he is a part owner of some land situated in Pakistan and an associated document entitled Register of Rightful Ownership which states that he has a 35/100th share in it. In addition to those documents there are some Internal Revenue statements relating to income derived by the applicant’s father in India. The other document is an enrolment offer from the ATQ College relating to an Advanced Diploma of Leadership and Management (ADLM) which is contained in a letter from the College issued on 16 January of this year, a few days ago. 

19. In his oral evidence the applicant conceded that he has not yet accepted that offer and does not intend to do so until such time as his visa status is clarified, the reason being that, according to the terms of the offer, he is required to pay the course fee of $12,250 upon acceptance. 

20. In addition to his documentary case, the applicant gave oral evidence today via video conference in English. He did not request an interpreter in his Hearing Response form and none was arranged. His representative did not attend. The applicants understanding of spoken English appeared to me to be reasonably good. There were some long pauses in his answers which I do not attribute to any linguistic difficulties or to any lack of understanding on his part of what the questions called for. Overall, I was satisfied that he was well capable of understanding what was being discussed. Certainly, he did not indicate to me at any stage that he was having any difficulty in understanding them or that he needed an interpreter.

21. In addition to the documents in the Tribunal file I have had access to a Departmental file which contains a copy of the NOICC, a copy of the NOC and the delegate’s reasons for decision.  It also contains correspondence from the Department to the applicant concerning service of the NOICC and the NOC but, as I indicated earlier, the applicant accepted in his evidence today that he received those documents on the dates they bear. Although there was some controversy about service shortly after the delegate sent the NOC to the applicant that issue has now fallen away.

22. In addition to them there is in the Department file a copy of a PRISMS record and certificates issued under the Act relating to confidential documents.

23. The Tribunal has also had access to an undated PRISMS record, the details of which have been discussed with the applicant today and are not controversial, and also a Movements Details record which contains some limited information, also uncontroversial.

    The delegate’s decision

24. In the NOICC, after referring to section 116(1)(b) of the Act, the delegate refers to condition 8202, a condition which, according to the Movements record, was imposed on the visa grant in December 2019. The delegate then goes on to summarise the applicant’s study history in Australia by reference to the PRISMS record.

25. Having discussed these matters with the applicant today I am satisfied that the concern expressed in the NOICC that he had not been enrolled in a registered course of study since 5 June 2021 when he completed a Diploma of Business (DOB) at the Australis Institute of Technology and Education, is well supported by the information in the PRISMS record and is, in any event, uncontentious.

26. On that basis the delegate stated in the NOICC that the applicant’s visa was liable for cancellation under section 116(1)(b) of the Act and he was invited to respond withing a certain time. No response having been received to the NOICC within that time the delegate proceeded to issue the NOC on 17 May 2022.

27. Insofar as condition 8202 is concerned the applicant accepted in his oral evidence that his TU-500 visa was granted on that condition to enable him to study a package of courses in the Higher Education sector at the University of Tasmania, these being a Foundation course, a Bachelor of Information and Communication Technology and a Bachelor of Science. 

28. In the reasons for his decision the delegate, after referring to the fact that no response from the applicant had been received to the NOICC, notes that the NOICC was correctly served in accordance with Regulation 2.55 and, as I have already said, there is no issue on the review that the delegate was entitled to proceed on that basis.

29. In Part C of his reasons the delegate also notes that the evidence before him was that the applicant had not been enrolled in a registered course of study since completing the DOB at the Australis Institute on 4 July 2021 and that he therefore had not complied with condition 8202(2)(a). On this basis there were grounds for cancellation under section 116(1)(b) of the Act.

30. As to whether the visa should be cancelled, after noting that the applicant had not responded to the NOICC, the delegate goes on to discuss the factors which he was required under the legislation to address. I do not propose at this stage to recite them but will come back to look at them individually when considering the discretionary aspects of the case.

    Evidence and findings on the review

31. Turning to the evidence, as I indicated earlier, the applicant has albeit it very belatedly provided a documentary case. He has also given oral evidence at some length this morning in relation to various aspects of his case which the Tribunal has investigated.

32. At the outset let me say that I was quite unimpressed with the way in which the applicant gave his oral evidence. Long pauses from time to time in endeavouring to answer relatively simple questions did nothing to instil in me any confidence about what he was saying. In addition to that he ultimately accepted that certain documentary evidence which he has provided is misleading. For example, his submission contained a statement regarding his attendance at classes. He stated that he was going to classes regularly. When asked about this the applicant prevaricated and was unable to directly respond to my questions but ultimately accepted that he had intended to convey in his submission the impression that he was attending classes in the ADLM a course which, as I have already indicated, he has not yet enrolled in and, indeed, has only procured an offer for enrolment from the College a few days ago.

33. He also accepted that having intended to convey that impression his submission was misleading because his other evidence confirmed that, in fact, he had not attended any classes in the ADLM.

34. There are other aspects of concern relating to his activities in Australia since he arrived here and, more particularly, those relating to his work. He began his evidence on this topic by telling me that he had never worked in Australia, that he had never engaged in part-time employment here and that he had never earned any money for working in Australia.

35. Later in his evidence he gave me completely contradictory answers but ultimately accepted that in fact he had been working for an employer named Box Divvy in Australia, initially on a part-time basis and later a full-time basis. For this work he had been paid about $24,000 in total, apparently. This, he said, was in accordance with his work restriction of not more than 40 hours per fortnight, on average. After the cancellation, since June 2022, he had been working full-time for that employer.

36. His part-time work prior to the cancellation had resulted in earnings in the order of $8,000, according to the applicant, and his full-time work something in the order of $14,000 or $15,000.

37. Having regard to these inherent inconsistencies and other unsatisfactory features of his evidence I am not prepared to accept much of what he has said today unless it is corroborated in some way by independent records, consists of an admission against his interests or is consistent with the objective features.

38. As I will note later in these reasons, I am not prepared to accept his oral evidence that his grandparents are in fact deceased. Once again, he gave me some initially contradictory evidence about this but ended up telling me that his grandfather died in August 2021 and his grandmother in January 2022. Reference was also made to these events in his documentary case. In his submission, and perhaps also in his GTE statement, he purported to explain his long period of non-enrolment by reference to his emotional distress resulting from these events.

39. When asked today why he had not provided the Tribunal with Death Certificates in circumstances where he had obviously gone to some lengths to obtain numerous other documents from Pakistan and where he sought to rely on these events to explain why he had not engaged in productive studies, he was unable to provide an acceptable explanation. These events, if they in fact occurred, could not explain in any event why he did not engage with the higher-level courses he says he came out here to study and why he regressed into the DOB.

40. Whilst I have no difficulty accepting that he completed the DOB in July 2021, given that PRISMS confirms it, the fact remains he had made no arrangements to engage in any other studies by the time (he says) he was informed about the death of his grandfather in August of that year.

41. Moreover, even if I was to accept his evidence that he lost his grandparents at the times he says he did, there is no medical evidence to support his assertion that he was distressed to such an extent that he could not engage in productive study. I am simply not prepared to act on his word as to why he was not enrolled in a registered course of study for such an extensive period.

42. I view much of his oral evidence about these and other matters with considerable circumspection and am not prepared to act on it unless it is corroborated in one of the ways mentioned.

43. In addition, as mentioned earlier, his admission that he intentionally withheld relevant financial information when seeking the fee reduction is of itself a serious concern. It may not be a reason for me to disbelieve other important aspects of his evidence but taken in conjunction with them it is a matter which I consider reflects poorly on him.

44. Dealing in more detail with his documentary case, as I have indicated, he lodged a submission late yesterday which consists of one page. He says he came out to Australia with the intention to study, then he wants to return to Pakistan and get a job in a multi-national corporation and look after his ageing parents. I will come back to this evidence in more detail later but can say here and now that I do not accept that he came out to Australia for that purpose. 

45. After being granted the TU-500 visa in late 2019 to study the higher-level courses at the University of Tasmania he arrived here a few days later but within the space of less than 4 weeks his enrolment in those courses had been cancelled for non-commencement.  

46. The asserted deaths of his grandparents, whatever view one takes of his evidence on this topic, could not possibly have provided any explanation for this significant change in direction and no other explanation has been suggested. The applicant has not explained why it is that he did not make any attempt to progress in those courses. None of his evidence, as far as I can see, goes anywhere near doing this. I do not accept that he came out here to study them in these circumstances. 

47. Instead, he enrols in the DOB at Australis in about June 2020, about 5 months later, and commenced studies in that course but, again, does not explain why he regressed into a vocational course such as the DOB.

48. There is no issue that he has not been enrolled in a registered course of study since 4 July 2021, a period now in the order of 17 or 18 months.  As noted earlier, the explanation he gives for this is the demise of his grandparents and the effect of their asserted deaths on him. It seems to me that, despite having been requested more than once by the Tribunal to provide documentary evidence to establish that these events have in fact occurred, and to provide other corroborating evidence to establish that his capacity to engage in productive study has been compromised, he has not done this and has not explained why.

49. In the course of his evidence I suggested to him that, given his conduct, it appeared to me that the main purpose of him coming out here was to engage in paid work rather than to study. He denied this but I do not accept his denial. Apart from the DOB, a course which took him about 12 months to complete, he has engaged with no other registered course of study and, apart from using the asserted deaths of his grandparents to explain his prolonged period of unproductive study, he has not paused to explain why. Nor has he explained why he was able to continue to work during that period.

50. He said in his submission that his parents had high aspirations and had spent a lot of money on him thinking that he would manage to find what he calls a big position in Pakistan after finishing his studies here. He wants one more chance to fulfill their expectations in circumstances where, he says, they have been meeting his living expenses in Australia. 

51. When asked today what he had done with the money that he had earnt from his employment, he said that he had been sending it back to his relatives in Pakistan. He accepted that he had been sending money to his uncle on many occasions since he arrived here, and to his aunt and friend on 3 or 4 occasions. In total he said he had given them about $10, 000 or $11,000. When I suggested to him that this indicated to me that he had been here to work in order to help his relatives he denied it but I do not accept his denial.

52. He is still working for Box Divvy as a packer, apparently. He is now working on a full-time basis because the Bridging visa which was granted in June 2022 contains no work restriction. It seems to me to be a rather convenient situation for him to be in. 

1. The statement which he provided to the Tribunal yesterday addresses the GTE requirement.  It does not address the factors which are specifically referred to in the Procedural Instruction Manual, factors which the delegate specifically addressed in his decision. The applicant has not, despite having an agent to assist him, specifically addressed those factors in his statement. He reiterates that he could not study here because of the deaths of his grandparents but I do not accept this contention in the form in which it has been presented to me.

2. He does explain in his statement why he chose to study the ADLM but much of this appears to me to have been lifted from promotional material circulated by the provider. 

3. In any event, in this case I regard his evidence relating to his future intentions to be unreliable. It may have had some relevance to his present circumstances but, as I say, I think at the end of the day it is too problematic for me to accept on the issue of whether his visa should be cancelled. 

4. He says he has a close-knit family and that he misses them. Well, I accept that he is close to his parents. What he has done with his earnings in Australia, if one accepts his evidence on that, suggests to me that he most probably is also close to other relatives who live in Pakistan. I do accept that his family is well established in Pakistan, that certain members of his family, including himself, own or have interests in land situated in that country. But evidence to this effect does not really take him very far and, indeed, on one view at least, it is counter intuitive. If his family are well off, as he appears to suggest, one can only wonder why he would be sending significant amounts of money to an aunt, an uncle and a friend, each of whom reside in Pakistan, apparently.

5. Strangely in his statement he contends that he has always complied with the conditions on which his visas have been granted and he does appear to me to be familiar with them. I am prepared to accept his evidence that he is familiar with them and that he was aware of condition 8202 at the time his TU-500 visa was granted. 

6. This, then, is not a case which involves a student who, for some reason, has inadvertently overlooked what the condition requires. It is not a case in which an applicant has been misled about it or had good reasons not to have complied with it. As I say, on the evidence which I accept, the applicant has utterly failed to come forward with an acceptable explanation as to why he did not comply with it. Condition 8202 on a TU-500 visa is an obvious and fundamental requirement and it is one which, absent an acceptable explanation, must be complied with.

7. Even if I were prepared to accept his evidence regarding what he has done with his earnings, it does not provide an acceptable reason for him not to engage in productive vocational study.

8. He says in his statement that he is a genuine temporary entrant and that he will be returning to Pakistan as soon as he finishes the ADLM but, on the evidence I have seen, documentary and otherwise, I am simply not prepared to accept that he wants to study this course for the reasons has given, nor am I prepared to accept that he intends to return to Pakistan once he completes it for the reasons he has given. Yes, he has procured at the eleventh hour an offer from the ATQ College for enrolment in that course, an offer which was made to him in response to an application which, on his own evidence, he did not make until shortly before he received the offer, that is on or about 15 January 2023, a few days ago. 

9. No-where in his evidence does he pause to explain why he did not take steps to enrol in this course long before he did. I do not accept that this is a genuine step which he has taken because he really wants to study. Rather, it seems to me that he has taken this step in a rather clumsy attempt to reinforce his forensic position in the review. Moreover, he has not accepted the offer, and does not intend to do so until his visa position is clarified. 

10. I am by no means convinced, even if I were to set aside the decision of the delegate and to substitute a decision not to cancel the visa, that the applicant would go ahead and enrol in the ADLM and proceed to study this course. It just appears to me to be too little too late in the overall circumstances of this case.

11. I do not accept his evidence that he wants to study the ADLM to acquire a big position in a multi-national corporation in Pakistan. His conduct since arriving here simply does not demonstrate to me that he has such a plan.

12. Dealing with his other documents, his parents have provided affidavits in support of his case.  There is nowhere in them any corroboration of his evidence concerning the deaths of his grandparents. I accept his parents own commercial and other properties in Pakistan but this evidence really takes him no-where in the overall circumstances of this case, as I have found them to be. 

13. The rental agreements referred to in his parents’ affidavits have also been provided but this too is of limited utility. I accept he has personal ties to Pakistan but do not regard them to be a particularly reliable indicator of his future intentions. If he really wanted to complete the ADLM and return to Pakistan for the reasons he has given he would have gone about his studies here very differently to what he has done.

14. If, in fact, he came out here to study to obtain a qualification which he could put to good use in a career back in Pakistan, he would not have gone about this in the way he has.

15. Looking at the other factors, while I accept that much of his evidence relating to the GTE requirement bears, at least indirectly, on some of them, he has not endeavoured to address them specifically. 

16. His review case is difficult to assess for that reason. The delegate was not satisfied that his purpose in remaining in Australia since 5 July 2021 has been to study, that his conduct has not been in line for the purpose for which the TU-500 visa was granted to him. Putting aside his completion of the DOB, given the other evidence which I am prepared to accept, I agree with that finding. 

17. Nothing has occurred since the decision under review was made in May 2022 which leads me to think otherwise. Indeed, in many ways, his position now is worse than what it was then. I do not think that the offer from the ATQ College changes the complexion of his case and do not accept that he genuinely wants to study the ADLM. If he genuinely wanted to study it he would have taken steps to do so long before now. In my view, the delegate correctly gave significant adverse weight to his unsatisfactory academic record in Australia. 

18. As to the extent of his compliance with visa conditions, on any view he has failed to comply with condition 8202 for a considerable period, something in the order of 18 months, an extensive failure for an applicant who did not arrive here until December 2019. Again, I would attribute significant adverse weight to this factor.

19. As to the degree of hardship that would be caused to the applicant and his family, the delegate refers to a person who is described in the decision as the applicant’s wife but he has not mentioned her in any definitive way in his evidence led on the review. The only evidence which the applicant has given about her is vague and imprecise. He refers to an unidentified girl who resides in Pakistan but there is no evidence from him to the effect that he married her before coming out here. Nor do I accept that he is engaged to be married absent reliable evidence to this effect.

20. Neither of his parents have given any evidence of hardship in their affidavits. They may be disappointed if the applicant’s visa is cancelled but they have not said as much in the affidavits. Nor, for that matter, has the applicant. I do not infer from the evidence led, such as it is, that either of them will suffer emotional distress if the decision of the delegate is affirmed, as I think it must be.    

21. So far as the applicant himself is concerned, he has only got himself to blame. He may have strong family ties, the fact that his parents have come forward to support him on this review suggest as much but, as I say, they have not given any evidence to inform the Tribunal on this aspect of the case despite having had the opportunity of doing so.

22. So far as the circumstances in which the ground for cancellation arose, I think I have already dealt with that. There are no ameliorating circumstances in this case on the evidence which I am prepared to accept, and I give these circumstances significant adverse weight in favour of cancelling the visa.

23. As far as his past and present behaviour towards the Department is concerned, the only thing I need say about this is that the applicant accepted in the review that he did receive the NOICC and the NOC on the dates which these documents bear. This is not the stance he took in his correspondence with the Department. As can be seen from the Department’s internal records, on or about 23 May he complained to the Department shortly after the NOC was sent to him that he had not received any correspondence from it in relation to his visa. This inconsistency is of some concern although, as I have said, I do not place significant weight on it. A concession of this kind made late is better than none. There is no other evidence to suggest that he has been uncooperative towards the Department.

24. So far as consequential cancellations are concerned, there are none which would be affected by the operation of section 140. The delegate was unable to give any weight to this factor and, in my view, he dealt with this correctly.

25. So far as the legal consequences are concerned, the delegate noted that the applicant may be subject to a three-year ban if he is unable to meet PIC 4013. This is a possibility and is a matter which must be addressed but these are consequences of the legislation and, in my view, they do not attract other than minimal weight in the overall circumstances of this case.

26. The other factors referred to by the delegate, which are listed in the decision, are relevant matters but, again, none of them can be given other than minimal weight against cancellation.

27. PAM 3 requires an assessment of whether Australia would be in breach of its international obligations. The delegate expressed the view that a cancellation of the visa would not potentially lead to the applicant being removed in breach of non-refoulement obligations and in this he was, in my view, plainly right.

28. There is nothing in the evidence to suggest that any children would be affected. This too is not a matter which comes into play at the discretionary stage.

29. There are no other matters arising on the evidence which the Tribunal need consider.

30. Overall, given the weight which I attach to the relevant factors, the grounds for cancelling the visa in this case clearly, in my view, outweigh the grounds for not cancelling it.

    Summary and conclusion

31. On the evidence led, the delegate was plainly entitled to find that a ground existed under section 116(1)(b) for cancellation of the visa arising from the applicant’s prolonged failure to comply with condition 8202 and that, at the discretionary level, the Tribunal is well satisfied, having regard to the relevant matters, that the visa should be cancelled.

32. Indeed, the overall circumstances of this case are seen to weigh heavily in favour of the Tribunal exercising its discretion to affirm the cancellation.

33. The Tribunal thus concludes that the visa should be cancelled.

    DECISION

34. The Tribunal affirms the decision under review.

    Michael Bradford
    Member