Shafait (Migration)

[2018] AATA 4933

Shafait (Migration) [2018] AATA 4933 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waleed Muhammad Shafait

CASE NUMBER:  1718197

HOME AFFAIRS REFERENCE(S):           BCC2015/208480 BCC2017/2170039

MEMBER:Michelle East

DATE:25 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 25 October 2018 at 2:16pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – death of a family member – divorce of a family member – impact on father’s illness – assaulted at work – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 August 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 there was a ground for cancellation for breach of condition 8202 of the Act, namely the applicant was not enrolled in a registered course of study from 6 February 2017 until 18 July 2017. 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. A copy of the delegate’s decision was attached to the application for review.

4. The applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments.

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 for a period of time.

9. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course of study between 5 February 2017 and 19 July 2017.

10. At hearing the applicant confirmed he had not been engaged in any study since February 2017.

11. On the evidence before the Tribunal the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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’.

13. On 25 July 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course for a period of time and therefore failed to comply with condition 8202(2) of his visa.

14. The applicant responded by email on 31 July 2017.

15. The applicant listed the following factors as reasons for his not studying between February and July 2017.  Firstly, he stated his grandmother was very ill and passed away on 25 July 2019.  It appears this is a typographical error as a death certificate was subsequently produced which indicated she passed away on 25 June 2017.  When questioned at hearing the applicant was unable to give a clear response as to how his grandmother died other than to say that she was in and out of hospital and eventually died because of her age.

16. Secondly, the applicant stated his sister got divorced which caused him much concern.  The divorce deed provided was dated 12 August 2016.  His evidence at hearing was that he didn’t know of any difficulties in their marriage prior to the divorce.

17. A further death certificate for the applicant’s uncle dated 8 November 2016 was also provided.  The applicant said he was close to his uncle.

18. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

19. The purpose of the student visa is to enable the visa holder to undertake study in Australia.

20. The applicant arrived in Australia on 6 February 2015, having been granted his student visa on 28 January 2015.

21. In 2015 the applicant studied at Edith Cowan University in a Tertiary Access Program.  The applicant also enrolled in and completed a Diploma of Business in February 2017.  Since that time he has not been enrolled in a registered course of study.

22. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

23. The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

24. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

25. The applicant was granted a Subclass 573 Higher Education Sector visa to undertake specified studies in Australia.  As noted in the delegate’s decision, the applicant was not enrolled in a registered course of study from 6 February 2017 to 18 July 2017. 

26. The Tribunal considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he had not done so for a significant period of time.

27. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

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

28. In his written response to his NOICC as well as a further written submission to the Tribunal the applicant has detailed various hardships that would be caused to him and his family members if his visa is cancelled.

29. Firstly, he said his father is suffering a heart condition and would be caused further stress if his son were to return home.  He said his father thinks he is the only one who can make anything of himself out of his siblings and he doesn’t want to disappoint his father.

30. Secondly he said if he returns home without completing his studies he couldn’t survive ‘because every single person will criticise me especially my brothers.  And it would get easy for me to die then live, because I will get that much criticised that I couldn’t show my face to anyone’. (sic)

31. The Tribunal accepts that the applicant and his family members would suffer some emotional and financial hardship if he were to return to Pakistan without any qualifications.

32. The Tribunal gives this some weight in the applicant’s favour.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

33. The applicant has provided an explanation of why the breach occurred.  Namely, that his grandmother was ill and passed away and his sister got divorced. 

34. The death certificate of the grandmother indicates she passed away on 25 June 2017.  The applicant’s evidence was that she had been in hospital several times during 2017 prior to passing away.

35. The divorce certificate provided for his sister indicates she was divorced on 12 August 2016.  The initial period of non-compliance was from 6 February 2017 – 18 July 2017. 

36. The Tribunal questioned the applicant about these dates and how they affected the continuation of his studies.

37. The applicant indicated he had received incorrect advice from an education provider who was also his lecturer at the World Group College and that the College itself was allegedly corrupt, asking for bribes in return for assessment.

38. The applicant’s evidence was confusing in that he was unable to explain how his family circumstances affected the continuation of his studies and why he didn’t seek to study elsewhere if he was unable to continue at the World Group College.

39. Nevertheless, the Tribunal is prepared to accept the situation with his family may have affected his ability to study and to that extent was beyond his control.

40. The applicant provided further evidence of an assault he suffered at work in July 2017 and also the need for comprehensive dental treatment in January 2018.  The Tribunal notes both these events occurred after the dates of the breach, however may have impacted on his ongoing ability to study.

41. The Tribunal is satisfied that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  The Tribunal finds this gives some weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

42. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    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 Minster’s intervention

43. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

44. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

45. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study for which his visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation, some of the circumstances were beyond his control and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

46. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    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.