Saqib (Migration)

[2019] AATA 646

Saqib (Migration) [2019] AATA 646 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hamza Saqib

CASE NUMBER:  1707388

HOME AFFAIRS REFERENCE(S):           BCC2017/790683

MEMBER:Brendan Darcy

DATE:26 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2019 at 5:08pm

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 – low attendance – poor academic results – not a genuine student – significant period of non-compliance – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the grounds for cancellation existed on the basis the applicant breached a visa condition and that the grounds for cancellation outweighed the grounds for not cancelling. 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, a Pakistani national, appeared before the Tribunal on 7 December 2018 to give evidence and present arguments.

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

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 3 July 2014 and the stay period of the visa was extended up to and including 28 February 2018.  It also shows that Provider Registration and International Students Management System (PRISMS) records that indicate had not been enrolled in a registered course of study since 3 October 2016.

10. The departmental file indicates that that the applicant was validly issued a Notice of Intention to Consider Cancellation (NOICC) on 3 March 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

11. On 29 March 2017, the applicant provided a written response to the NOICC (dated 29 March 2017), in which the applicant did not dispute grounds for cancellation.

12. On 30 March 2017, the Department proceeded to cancel the applicant’s student visa and was notified on the same date. He then applied to have the delegate’s cancellation decision reviewed by the Tribunal on 6 April 2017 with the decision record attached.  

13. The applicant’s representative provided the Tribunal a submission dated 22 February 2018 which provided a detail educational history. It claimed that the applicant completed a General English course in January 2015, that his enrolment in a Bachelor of Business at Holmesglen was cancelled by the applicant in favour of a Diploma of Information and a Bachelor of Information at the Victorian Institute of Technology.

14. At the beginning of the scheduled hearing, the applicant’s recollection of his enrolments lacked detail. He claimed that he completed his English coursework. He did not the cancellation date for his Bachelor of Business and when asked if he re-enrolled in a new Bachelor’s degree, he evasively answered that he was offered an enrolment.  

15. He was provided a copy of the PRISMS record relevant to his enrolment history under the Act’s adverse information provisions. In particular the Tribunal stated that the PRISMS response indicate the applicant did not complete the English coursework which was contrary to the document he submitted as he had attended less than 80 per cent of the class and an overall claimed of academic progress so the applicant may have breached visa condition 8202(3). The Tribunal also stated that the cancellation date for the enrolment pertaining to the Bachelor’s degree was recorded as 19 February 2015, that there was no record of any further enrolment of a Bachelor degree and not the later date of 3 October 2016 as the delegate’s decision record indicated. It also indicated that he applicant hand not been compliant with condition 8202(2) for a considerable amount of time. The Tribunal explained to the applicant the reasons the information was relevant and that, subject to his comments, the information would make up the reason or part of the reason for reason to affirm the delegate’s decision to cancel the visa. It was explained that the applicant did not have to respond immediately. The applicant said he understood the information and the reasons it would be relevant to the Tribunal. The applicant and his representative were provided with a ten minute adjournment.

16. After the adjournment, the applicant responded that he had completed his English coursework despite his low attendance rate, that he had a high IELTS score and that he had paid tuition was not aware of the Bachelor’s degree being cancelled; that he attempted to enrol in Scott’s College for a diploma in information technology but he had not enrolled in any degree level coursework.  

17. Contrary to his representative’s submission, the applicant admitted that he was not enrolled in a registered course commensurate with a Subclass 573 visa since 19 February 2015.

18. In the representative’s post hearing submission, it noted that the applicant did not re-enrol in a Bachelor’s degree since one was cancelled in March 2015:  

    The applicant arrived on a student visa to complete a Bachelor of Business course at Holmes Institute which was supposed to start in March 2015. However the applicant moved to Diploma of IT leading to Bachelor of IT, He struggled to complete Diploma of IT and he was imposed condition not to enroll in to Bachelor degree till Diploma or Adv Diploma of IT was successfully completed. (sic)

19. On the evidence before the Tribunal, the applicant was not enrolled in any course from 3 October 2016 until the date of cancellation on 30 March 2017 – almost seven months.

20. However, the delegate erred in the date and extent of non-compliance with condition 8202(2) by confusing the applicant’s last date of enrolment in any coursework with his last date  of enrolment in any registered course commensurate with a Subclass 573 visa  - a Bachelor’s or Master’s degree – which is 19 February 2015.

21. On the evidence before the Tribunal, the applicant was not enrolled in any registered course from 19 February 2015 until the date of cancellation on 30 March 2017 – a period of just over two years.

22. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

23. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does arise. It follows that the visa may be cancelled.

    Consideration of the discretion to cancel the visa

24. 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 to and stay in Australia

25. In the response to the validly issued NOICC, the applicant did not address the purpose of his travel was to study, other than a limited mention that he was keen to finish his education as quickly as he can and make his parents proud.

26. According to the decision record, there was no evidence to suggest the visa holder’s original intention for travel to and stay in Australian was not for the purpose of study and gave this consideration little weight in the then visa holder’s favour.

27. In his statement to the Tribunal dated 22 February 2018, the applicant claimed he travelled to Australia for the purpose of business studies but switched to information technology coursework due to his personal interest and because there was potential in applying this knowledge and his studies in to expand the family business in metal sheet fabrication. It added that he needed to understand the fundamentals of business and to complete a business degree. At the scheduled hearing, the applicant was provided with the opportunity to elaborate on this business goal. He stated he wanted to complete a mixture of business and information technology so as he could take the family business to an international level. He said that his business is run by his brothers, that the annual turnover is about 100,000 Australian dollars. When the Tribunal asked the reason his Bachelor of Business had been cancelled in favour of information technology, the applicant claimed he wished to return to a bachelor degree after his diploma in information technology.

28. The Tribunal notes that the applicant‘s attendance record in English language course work was sufficient low for an education provider to cancel his enrolment and that the applicant admitted that he could not achieve any of the competencies in his diploma for information technology despite it being his passion or interest. From October 2016, the applicant was not enrolled at all, although he claimed that he was being encouraged by the education provider, VIT, to enrol in an Advanced Diploma of IT, before being enrolled in a Bachelor’s degree.

29. The applicant also provided the Department as part of his NOICC response a letter of offer to enrol in an Advanced Diploma of Business Stott’s College dated 29 March 2017. To the Tribunal, he submitted emails indicating that he gained a letter of offer to enrol in a package of coursework which include Bachelor of Engineering Technology (Civil) at Melbourne Polytechnic in in July 2018 when he attempted to gain study rights on his bridging visa E. He also submitted a letter of offer dated 29 November 20187 for a Bachelor of Information Technology to start in March 2019. 

30. During the hearing, the Tribunal enquired if he struggled with a diploma, perhaps he did not have the academic capacity to complete a Bachelor’s degree. The applicant did not respond. The Tribunal enquired into the reasons the applicant was unable to enrol into a Bachelor degree prior to the issuing of the NOICC if he was able to garner a letter of offer for a Bachelor’s degree after visa was cancelled. Again the applicant did not answer the question.

31. Overwhelmingly, the evidence submitted to the Tribunal in relation to letters of offer for degree level coursework were submitted for the purposes to augment the applicant’s claim that he want to complete a bachelor degree. However the applicant undermined his claim to be a genuine student in two ways: Firstly he applied for unrelated courses work – business, information technology and civil engineering. Secondly he demonstrated that he was able to gain letter of offer for a bachelor degree after the issuing of the NOICC which undermined his claims that he was unable to prior to its issuing. Considering this and in the context of the applicant’s low attendance in English language his poor academic results in a diploma level and his vague claims about building a small family business into a global one, the applicant has failed demonstrate to the Tribunal that his original purpose to travel to Australia was to study or that he is committed to completing a Bachelor’s degree if this visa were to be reinstated into the foreseeable future.

32. Accordingly, the Tribunal does not accept the applicant genuinely wants to remain in Australia to complete studies on a full time basis and it finds he will not uphold he conditions imposed on him as a student visa holder. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

33. The delegate decision does not record any information about further non-compliance. However the Tribunal finds that the applicant, while he gained his English coursework, his attendance was unsatisfactory leading to the cancellation of his enrolment according to PRISMS and that he had not complied with conditions 8202(3). The Tribunal places some weight on this in favour of the visa remaining cancelled. 

34. The applicant was not enrolled in a registered course commensurate with a Subclass 573 visa for more than two years. This is an extraordinary amount of time to be non-compliant with condition 8202(2) and the Tribunal considers this significant to the question whether his visa should be reinstated. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

35. The delegate’s decision accepted that the applicant may be caused some financial difficulty associated the cancellation of this visa and there may be some other hardships as a result of the cancellation such as a failure to complete a qualification. The delegate only provided a little weight in favour of the visa not being cancelled.

36. During the hearing, the applicant claimed that his parents sent a lot of their saving on his education and living expenses while in Australia and it would shameful to return to his family in Pakistan without achieving anything. The Tribunal enquired if his parents loved him and he said yes. The Tribunal asked if this is the case then the disappointment will not last. He did not respond. The applicant further stated that many of his friends have completed their studies and have graduated. The Tribunal enquired if there was much hardship if he had to start his studies later than his peers. The applicant did not respond. The Tribunal enquired if the applicant has undertaken any psychological counselling or whether he is medicating for any psychological symptoms. He responded he has not. The Tribunal accepts there will be some emotional, psychological and educational setbacks for the applicant but he will be returning to Pakistan to a supportive and nurturing family.  The Tribunal finds these setbacks do not amount to significant hardships, cumulatively considered and it gives these hardship considerations little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

37. As stated above and not disputed by the applicant, the applicant was not enrolled in any registered course from 19 February 2015 until the date of cancellation on 30 March 2017 – a period of just over two years.

38. In the applicant’s NOICC response, he provided the following vaguely written reasons for his non-compliance:  

    'Before commencing my 2nd Semester in March 2016, VIT informed its student regarding the change of study plan and the transition from superseded qualification to the new plan, which technically wasn't much different than the previous one, including the time frame but then I found that after completion I may not be offered a Bachelor course offer letter and will be asked to enrol in a Adv. Diploma oft T. which I was prepared to undergo.

    I enquired about the matter at VIT student services, who then referred me to the student advisory, and they confirmed that this is how the study plan works and I told them that I do need to start studying Bachelor as soon as I can, because I need to finish and get back home, because delay in studies is also detrimental to my career and future prospective.

    As mentioned in the NOICC that I haven’t maintain my enrolment in a registered course of study, I must say that my CoE was supposed to get deferred anyway, due to being unsuccessful in passing out my subjects, but before getting it deferred I requested VIT to provide me an offer letter for Bachelor also so that I can acquire a CoE but they weren't ready to issue me that offer letter until I complete my Diploma, and after all this, moving on to another provider was not my option as I already moved once before when I started at VIT but I was told by the advisor that there is a summer intake which I will have to undergo to fast track studies, but as it wasn't mandatory for me to study I choose to take a break

    In January 2017, I went back to VIT for enrolment and they mentioned that I will have to sign another offer letter as they need to revise my CoE because I failed my course earlier, my CoE will be deferred, which I should have done earlier, but at no point of time VIT informed  or asked me for it earlier, and I thought as I am continuously giving my attendance and taking classes and giving exams including submission of my assignments, my enrolment completion date will be automatically updated in the College system.'

39. According to the decision record, the delegate emphasised that the applicant could have approached his education provider to discuss the continuance of his study plan and that the education providers had a range or counselling and assistance programmes available to all students to assist them with personal problems, course progress and attendances or sought to apply for a deferral or leave of absence. The applicant did not present any evidence in this regard.

40. During the hearing, the applicant reiterated that when he started his diploma at VIT, the education provider told him could not enrol into a package of coursework that included a Bachelor’s degree or to enrol in just a Bachelor’s degree and he went to a migration agent who sent emails on his behalf. He stated that he was aware he was not compliant and he just accepted the situation. Asked whether the circumstances or the situation was beyond his control, the applicant said it was not.

41. In the representative’s post hearing submission, it was argued that the applicant’s intention was to undertake a Bachelor of Information Technology degree however he fell into a situation where he was stuck undertaking a diploma and the education provider would not co-operating. Submitted were emails by his agent to an education provider in 2016. They do not indicate anything relevant to this consideration. The Tribunal does not accept the applicant was ‘stuck’ in any enrolment given the size and variety of the higher education market in Australia.

42. The applicant has acknowledged he understood the significance of upholding condition 8202 when he became non-compliant. He claimed that he attempted to re-enrol in a Bachelor’s degree but he has failed to demonstrate to the Tribunal that the circumstances were extenuating and he has admitted they were not beyond his control and that he just accepted the situation. He had a number of options to avoid non-compliance or to mitigate the significant period of non-compliance with condition 8202 over a two year period.

1. The applicant’s non-compliance with condition 8202 was entirely within his capacity to address. There were no extenuating circumstances leading to the grounds for cancellation of the applicant’s visa.  The Tribunal places no weight on this factor in having the visa reinstated It places significant weight on the applicant’s behaviour where he knowingly remained non-compliant with condition 8202 for such a long period of time.

   Past and present conduct of the visa holder towards the Department

2. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

3. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed and other mandatory legal consequences. . The applicant responded by stating he never imagined he would be in this position and he was worried he would not travel or study in Australian and hoped he could return to visit if he married. In the post hearing submission, the representative stated the applicant will immediately become unlawful. This is not correct. As discussed in the hearing, if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart. If he does become unlawful he could be detained or forcibly removed.  The Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

5. The applicant has not immediate dependants. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

6. During the scheduled hearing, the applicant, a Pakistani national, did not advance that he has a real chance or a real risk of harm from the authorities or anyone else arising from his personal circumstances, if he returns to country of nationality. The representative’s post hearing submission states the applicant has nil concerns in this regard. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant considerations

7. The Tribunal ordinarily takes into account an applicant who is relatively young and has not been compliant with conditions imposed on his student visa are often immature and away from parental supervision in the first time in their lives, leading them to be distracted or side-tracked from their academic and/or career goals or are naturally uncertain or tentative about their goals. The applicant accepted he was immature and said that he was now mature enough to stay focused on his academic goals. The Tribunal places some weight on this factor in favour of the visa being reinstated.  

   Conclusion

8. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

9. Considering the evidence provided and on weighing the above factors and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Brendan Darcy
    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.