Rehman (Migration)

[2019] AATA 3587

Rehman (Migration) [2019] AATA 3587 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zaid Ur Rehman

CASE NUMBER:  1706920

HOME AFFAIRS REFERENCE(S):           BCC2017/117801

MEMBER:Frank Russo

DATE:19 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2019 at 12:35pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – no evidence provided regarding depression  – no compassionate circumstances– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359AA, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 March 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 did not meet the requirements of his Student visa as he was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

8. The applicant is a 26-year-old national of Pakistan. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the following documents:

   a.Certificate from Queen Anne English College for the completion of a 10-week Level 2 English for Academic Purposes course, dated 7 July 2014;

   b.Report of Bill Singh, Consultant Psychologist, dated 7 March 2017; and

   c.Clinical notes of Dr Khan, Ahmed International Hospital Baffa Mansehra, Pakistan, dated 20 December 2016.

9. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

10. The Tribunal asked the applicant whether he had seen and understood the Department’s decision. The applicant confirmed that he understood the decision.

11. The applicant gave evidence that he first arrived to study in Australia in 2014. He stated that he first completed a 10-week ELICOS English for Academic Purposes course at Queen Anne College, but explained that he didn’t do well in this course, obtaining a D grade. The applicant provided the Tribunal with a copy of a certificate for this course, which confirms that he completed the course and received a D grade.

12. The applicant told the Tribunal that after this he had admission to a Bachelor of Accounting degree at Kent Institute in Sydney, however he stated that when he commenced these studies he wasn’t able to understand things and he felt that a Bachelor degree was too hard for him, so he decided to take admission in a diploma course and then come back to a Bachelor course later.

13. The applicant stated that he enrolled in a Diploma of Accounting at a college in Parramatta. He told the Tribunal that the college he enrolled in was the Australian Institute ‘or with a name something like that’. He told the Tribunal that he again had difficulty understanding, the course material and in addition he was homesick. He stated that his mother was not well and that he had provided a medical report which supports this. He stated that he attended the college for about five or six months. He also stated that there were some assignments which he did not submit, and after this his visa was cancelled.

14. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

15. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history.

16. According to the applicant’s PRISMS enrolment record he has been enrolled in the following courses:

    a.English for Academic Purposes from 24 February 2014 to 11 July 2014, which he finished;

    b.A Bachelor of Business, with a start date of 14 July 2014, which was cancelled on 15 April 2015. The reason provided is ‘Student notifies of Cessation of Studies’;

    c.A Certificate IV in Accounting from 15 May 2015, which was cancelled on 15 March 2016. The reason provided is unsatisfactory course progress;

    d.A Diploma of Accounting, which was due to start on 11 April 2016, but which was cancelled, with the reason for cancellation recorded as non-commencement of studies; and

    e.A Diploma of Business, in which he was enrolled from 20 March 2017, which was also cancelled, with no reason recorded for the cancellation.

17. The applicant stated in response to his PRISMS record that when his visa was cancelled by the Department he enrolled again in another course, in the Diploma of Business, although he told the Tribunal that this was in 2018. The Tribunal notes that at various stages in the hearing the applicant had trouble remembering dates, including the year his Student visa was cancelled by the Department. Based on the applicant’s PRISMS record, the Tribunal infers that he was at this point referring to his enrolment in the Diploma of Business in March 2017. The applicant told the Tribunal that he commenced studying this course, but at the time of the hearing he was no longer studying as he had moved to Tamworth to live with his sister. When questioned when he moved to Tamworth, the applicant stated that he had moved there eight months before, when his visa was cancelled. The Tribunal pointed out that his visa had been cancelled in March 2017, two years before. The applicant responded that he could check the date he moved on his phone. When asked by the Tribunal for a general indication as to when he had moved to Tamworth, he stated it had been more than a year ago.

18. The applicant confirmed at hearing that he was not enrolled in a registered course of study from 15 March 2016 to 6 March 2017 and had failed to maintain his enrolment in accordance with condition 8202. The applicant conceded that there are therefore grounds for cancellation of the visa.

19. 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

20. 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

21. The applicant told the Tribunal that the purpose for his travel and stay in Australia is to study to obtain a tertiary qualification. He stated that in Pakistan the education system is not of the same quality and an education from Australia is valued all over the world. The applicant stated that prior to coming to Australia he had a Diploma in Business Administration from a college in Pakistan, and he worked in a distribution agency of Nestle for around two years.

22. When questioned about his current plans, the applicant stated that if his visa is not cancelled he intends to seek admission to ‘Armidale University’. When questioned further about the name of the university he repeated his reference to Armidale University. The Tribunal asked whether he was referring to the University of New England and he confirmed that this was the case. The Tribunal questioned the applicant as to what he intended to study, to which he responded that he wanted to do a Bachelor degree again, this time in the right way.

23. The Tribunal questioned the applicant as to his plans after he completes a Bachelor degree, to which he stated that he then intends to then pursue a Masters degree in Australia.

24. The Tribunal questioned the applicant as to whether he had contacted the University of New England to make enquiries about admission. He stated that he had visited the university, and that for admission he which would need to supply all of his documents for his previous studies in Australia and Pakistan. When questioned further about what course he intends to enrol in, he stated a Bachelor of Accounting. He stated that Armidale is about 100km from Tamworth and he intends to get a place in Armidale and return to his sister’s house in Tamworth on the weekends. The Tribunal questioned the applicant as to whether he had made an application to the university or received any letters of offer, to which he confirmed that he had no letters of. He stated that if his visa is not cancelled he will apply to the University of New England straight away.

25. The Tribunal questioned the applicant as to why he had enrolled again in March 2017 in a Diploma of Business. He stated that this was so he could study again. He also stated that he commenced studying this course, but then moved to Tamworth.

26. There is nothing before the Tribunal to suggest that the applicant’s original reason for travelling to Australia was not to study. The Tribunal accepts that the applicant first arrived in Australia for the purpose of studying, however the Tribunal notes that from the time he first arrived in February 2014 until 6 March 2017, a period of just over three years, he completed an English course, for which he obtained a D grade, and on his own evidence, he completed five to six months of the Certificate IV in Accounting.

27. There are other concerns in relation to the applicant’s evidence about his enrolment history. On 2 March 2017 the Department issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa. On 7 March 2017 the Australasian International Academy Pty Ltd issued a Confirmation of Enrolment for the applicant to commence the Diploma of Business on 20 March 2017, which was cancelled after the applicant’s visa was cancelled by the Department. The applicant did not provide compelling reasons as to why he was unable to continue with his enrolment in the Diploma of Business, other than his move to Armidale, leading the Tribunal to find that this enrolment was made for the purpose of avoiding cancellation of the applicant’s Student visa, rather than for the genuine purpose of study.

28. The Tribunal gives little weight to the applicant’s stated plan to enrol at the University of New England. The applicant provided some information of enquiries made to the university about admissions processes, but when asked whether he had any letters of offer or other documentary evidence of contact with the university, he indicated that he did not. The applicant was also unable to recall the university’s name. The applicant’s evidence suggests to the Tribunal that his stated plan remains at the idea stage.

29. Despite the above concerns, based on the applicant’s evidence about his hopes for obtaining an education, the Tribunal accepts that the applicant does wish to obtain a Bachelor degree and then proceed to a Masters degree. Accordingly, the Tribunal gives this matter some weight against cancelling the visa.

    The extent of compliance with visa conditions

30. The applicant conceded at hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from. The applicant stated that he had otherwise complied with the conditions of his visa. He told the Tribunal that under his visa he was allowed to work a maximum of 20 hours per week, and he stated that he didn’t work much more than that. He gave details of his employment at Caltex and indicated that managers there will get into trouble if they schedule more than 20 hours of work per week for Student visa holders. The Tribunal accepts that the applicant has complied with the other conditions of his visa, but given his non-compliance with condition 8202(2) over a period of almost a full year, I give this only little weight against cancelling the visa.

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

    When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that he won’t be able to apply for visas to other countries if his Australian visa is cancelled. He stated that he wants to complete his studies and he wants to be educated, and that if he gets the change he will use it in the right way. He stated that he has already lost a lot of time and if his visa is cancelled his life will be ruined. He stated that he had not yet told his family that his visa had been cancelled. He stated that if he goes back home and his family learns about the visa cancellation they will be hurt and worried. In relation to his evidence with respect to the circumstances which resulted in the cancellation of the visa, the applicant also mentioned various psychological issues which arose at that time, such as stress and anxiety, and the Tribunal also considers the potential psychological hardship that may be caused. The Tribunal accepts that the applicant will experience some hardship as a result of the cancellation of the visa. The Tribunal gives this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

31. As to the circumstances in which the grounds for cancellation arose, the applicant stated that while he was enrolled in the Diploma of Accounting he had trouble understanding some of the course work and he was missing his home. He stated that he had never lived outside of his family’s home before. He told the Tribunal that when he went to the airport to leave for Australia he got tears in his eyes as he had left his mother behind. In addition, his mother was not well and he was worried about her health. He claims that he was stressed, suffering from anxiety and home sickness. Then his mother became ill. He stated that there were some assignments which he did not submit and he could not do an exam.

32. When questioned further about the circumstances, the applicant added that if he hadn’t been living with his girlfriend then his visa wouldn’t have been cancelled. He stated that he lived with his girlfriend for about two years, that she was South Korean and has now returned to South Korea. When asked by the Tribunal how this contributed to his visa cancellation, he stated that before this he hadn’t lived with anyone before and he had fallen in love.

33. The applicant provided a copy of a clinical record from Dr Ijaz Ahmed Khan, dated 20 December 2016, which records that the applicant’s mother:

    … has been suffering from diabetes, serious, Kidney Diseases for last three years and now has been admitted to this Hospital. During the Specific period while she was admitted Showed that she needed intense care and treatment. Now she is under my treatment with the complaint of severe chest pain under emergency heart care service.

34. The applicant did not provide any other medical records in relation to his mother’s conditions. The Tribunal notes that the applicant ‘s enrolment in the Certificate IV in Accounting was cancelled on 15 March 2016, approximately 9 months before Dr Khan’s clinical record relating to the applicant’s mother’s hospital admission for chest pain. While the Tribunal accepts that the applicant’s mother has suffered from various serious medical conditions, insufficient evidence has been provided by the applicant to link his mother’s medical conditions to the cancellation of his enrolment in March 2016 or for why he waited until March 2017 to enrol in another course. The Tribunal notes that if the applicant was unable to study in 2016 due to his mother’s health and the consequent effect this had on him, it was open to him to seek a deferral of his studies or to return to Pakistan and seek re-enrolment at a later stage.

35. The applicant told the Tribunal that while he could have left in 2017 to see his mother, if he did so he would not have been able to return to Australia and his dream of obtaining an education would have been ruined. Whilst the Tribunal accepts that this was an issue for the applicant after his visa was cancelled in March 2017, it also notes that despite the applicant’s stated concern for his mother’s health and his homesickness, he did not return to Pakistan in the three years before his visa was cancelled. This includes the 12-month period from 15 March 2016 when he was not enrolled in a course of study, and for which study obligations cannot be used as an excuse for not travelling.

36. The applicant provided a copy of a report of Bill Singh, Consultant Psychologist, dated 7 March 2017, in which Mr Singh states that the applicant experienced depression, anxiety and stress and presented as someone whose resilience has been compromised and who has developed psychological responses which are detrimental to his studies. The Tribunal has concerns about the timing of the report, given the clinical assessment interview with Mr Singh was held on 7 March 2017, a few days after the Department issued the NOICC to the applicant. There is no evidence that the applicant sought treatment during the time when he alleges the difficulties arose or any time during the almost full year from the cancellation of his enrolment on 15 March 2016 until the NOICC was issued on 2 March 2017. The report also recommends that the applicant continue with psychological counselling, yet no evidence was provided of the applicant continuing with such treatment. The Tribunal gives little weight to Mr Singh’s report, noting that the circumstances recorded by Mr Singh were recounted to him by the applicant at an interview on 7 March 2017, after the applicant had received the NOICC.

1. The Tribunal is of the view that the circumstances of the breach were not beyond the applicant’s control. While I accept that the applicant may have experienced the difficulties he outlined in his evidence, he was not enrolled for approximately a one-year period, which is a substantial period of time to not be enrolled and to not be studying when the purpose of your visa is to study. The applicant could have taken steps, such as to defer his course on compassionate grounds or to visit his mother. In relation to the evidence the applicant provided about his former relationship with his girlfriend, the applicant was unable to clearly articulate how this contributed to the breach other than stating that he was inexperienced in living with someone and was in love. The Tribunal does not consider this to amount to a sufficient excuse for the applicant’s lack of focus on his studies. Nor does the Tribunal consider this to amount to extenuating circumstances for the breach or for remaining un-enrolled. The Tribunal does not accept that the circumstances outlined by the applicant as a whole excuse him for remaining un-enrolled for a period of close to a full year. The Tribunal therefore gives this little weight against cancelling the visa.

   Past and present behaviour of the visa holder towards the department

2. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. The Tribunal also notes the statement the applicant provided to the Department prior to his visa being cancelled, which suggests that he has been cooperative. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

3. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

4. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status.

5. The Tribunal is also mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. As noted above, the applicant stated that the purpose for him remaining in Australia is to obtain a tertiary qualification. The applicant may therefore be unable to complete his studies or will undergo a further significant delay in the completion of his studies. Accordingly, the Tribunal gives this some weight against cancelling the visa.

   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

6. Not applicable.

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

7. Not applicable.

   Any other relevant matters

8. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

9. The Tribunal has had regard to the applicant’s claims. While I sympathise with the applicant’s claims in relation to the difficulties he experienced with his studies, with his mother’s health and with homesickness, the events recounted by the applicant do not fully explain or excuse his lack of enrolment for a period of almost a full year. Having weighed up each consideration relevant to the exercise of the discretion, as a whole, I find that these provide insufficient weight against cancelling the visa.

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

    DECISION

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

    Frank Russo
    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.