Shah (Migration)

[2019] AATA 1977

Shah (Migration) [2019] AATA 1977 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Furqan Shah

CASE NUMBER:  1729258

DIBP REFERENCE(S):  BCC2017/2969425

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 April 2019 at 10:28 am (WA time)

DATE OF WRITTEN RECORD:                29 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 April 2019 at 11:06am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – no genuine attempts to re‑engage in study – financial difficulties – family issues – emotional stress – no attempt to seek deferral of studies on compassionate grounds – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations (Cth) 1994, Public Interest Criterion 4013, Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 November 2017 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2.    At the hearing on 3 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

STATEMENT OF DECISION AND REASONS

3.    An edited transcript of the oral reasons for decision provided to the applicant on that date is attached to this decision record.

DECISION

4.    The Tribunal affirms the decision under review.

Dr Colin Huntly
Member

Edited Transcript

ORAL DECISION OF MEMBER HUNTLY  [10.07 am]

Background

1. This is an application for review of a decision dated 14 November 2017 made by a delegate of the Minister to cancel the applicant's subclass TU (Vocational Education and Training sector) subclass 572 visa under s.116(1)(b) of the Act.

2. The applicant was granted a subclass TU 572 Student visa on 16 September 2016.  At that time, he was resident in Australia having previously completed courses of study under prior visa arrangements.

3. The visa was cancelled on 14 November 2017 following the serving of a compliant notice of intention to consider cancellation as per the relevant provision.  The notice of intention to consider cancellation of the visa was provided to the applicant on 18 October 2017.  The decision to cancel the visa was subsequently made on the basis that the applicant had not been enrolled in a registered course from 2 February 2017, thereby breaching condition 8202(2) of the grant of a visa.

4. This requirement under condition 8202(2) requires a visa holder to be enrolled in a registered course.  The applicant was advised of the Department's concerns about his failure to be enrolled in a registered course in the notice of intention to consider cancellation letter.  I have reviewed both the notice and the decision and I find that the decision was made in the terms described in the notice.

5. The applicant was not represented in relation to this review by a registered migration agent.  At the time of his application for review the applicant provided the Tribunal with a copy of the delegate's decision record, dated on 14 November 2017.  The issue in the present case is whether the grant of cancellation is made out and, if so, whether the visa should be cancelled.

Consideration of facts and evidence

1. I note that the applicant responded to the notice of intention to consider cancellation and this is referred to in the delegate's decision record of 14 November 2017.  The reasons given by the applicant as to why his visa should not be cancelled are summarised at page 2 of the decision record:

   ·     Firstly, family issues in his home country caused him emotional stress, as a result he was unable to focus on his studies.

   ·     His focus was further affected by his parents' relationship status.

   ·     He was unable to receive financial support from his parents.

   ·     He attempted to obtain a new certificate of enrolment, however he was unable to do so as the semester had already commenced.  He now intends to enrol in semester 1 2018.

   ·     He acknowledges that he has missed a semester of study and is attempting to recommence his studies.

2. Having reviewed the relevant correspondence in the departmental file, I find that these represent a fair and accurate summary of the applicant's reasons for why cancellation should not proceed.

3. During the hearing we discussed your movement record of your travel to and from Australia.  It is noted that you departed and re‑entered Australia five times, since your initial travel to Australia on a subclass TU 572 student visa on 11 May 2011.

4. At the hearing we discussed the fact that you have been a student enrolled in Certificate II and III courses and have completed them successfully while you have been in Australia under successive student visas.  The Tribunal therefore draws the inference that you are an experienced student, you understand the processes of enrolling and what is required in order to maintain your enrolment status, including applying for deferrals.  You are also an experienced international traveller and you have moved between Australia and Pakistan with some frequency and apparent familiarity.

Findings

1. The Tribunal finds that you are aware of the conditions of your visa and in saying this I note that, having reviewed your Uber driver's log, you seem to be meticulous in limiting your number of work hours to within the 20 hours provided under your visa requirements.

2. During the course of the hearing you acknowledged that you were not enrolled in a registered course of study after 2 February.  And contrary to what you asserted to the Department in your response in 2017, you have not secured enrolment in any course of study while you have been in Australia since that time.  The reasons that you have given for this are financial in that you have had difficulty in obtaining continuing financial support from either of your parents in Pakistan.

3. The issue before the Tribunal in the first instance is whether or not the applicant, as a holder of a student visa has breached condition 8202 of Sch.8 to the Migration Regulations 1994. If the applicant has breached that condition, then, under section 116(1) of the Act the visa may be cancelled.

Did the applicant comply with condition 8202? 

1. Condition 8202 as it applies in this case is set out in the Regulations.  It requires an applicant to be enrolled in a registered course (or in limited cases a fulltime course of study).  It requires that the applicant has not been certified by his education provider as not achieving satisfactory course progress and has not been certified by his education provider as not achieving satisfactory course attendance. 

2. Of these, the requirement which is in issue in the present case, is whether or not the applicant has been enrolled in a registered course.  By the applicant's own admission he has not been so enrolled since 2 February 2017.  This was the reason why the delegate believed that the case for a cancellation was made out.  I think by the applicant's own admission this requirement has been satisfied.  The Tribunal so finds.

Should the discretion not to cancel be exercised in favour of the applicant? 

1. Now, as to whether or not the applicant's visa should be cancelled it is conceded that certain considerations may be considered as to whether a cancellation should proceed. 

2. First of all, I have considered the purpose of the applicant's travel to and stay within Australia.  It is clear that up until 2 February 2017 the applicant was in Australia to study.  The applicant claims that this intention was disrupted by the impact on him emotionally and financially of his parents' acrimonious marriage and subsequent divorce during the period of 2017.

3. The Tribunal is mindful of the fact that the applicant has been onshore in Australia for most of his life since May 2011 and, therefore, the Tribunal understands that this fact could exacerbate his emotional and mental trauma from the breakup of his primary caregivers' marital relationship.

4. However, the applicant has had two opportunities since he ceased study to take steps to re‑engage in education.  This is in addition to the point (which is made in the delegate's decision record) that he made no attempt to seek a deferral of his studies on compassionate grounds at the time in which he ceased to study in February 2017.

5. This together with the fact that the applicant left Australia for two weeks to visit home at the end of June 2017 and returned to Australia in time to re‑engage with his studies in July 2017 is a matter of significance.  I note that the applicant, on return to Australia on a student visa, subsequently took no steps to re‑enter his course of study.

6. I also note that, despite assuring the Department in November 2017 that he intended to study in the following semester, the applicant has not made genuine attempts to re‑engage in any form of study that would qualify him for continued consideration as a visa holder of the type that he was when he ceased to study.  Accordingly, while I believe the applicant was genuine in coming to Australia in the first instance to pursue a course of study, the evidence since July 2017 is that the purpose of his travel to Australia and his stay in Australia is not for the purposes of study.  I place some weight on these considerations against the applicant's interests.

7. I now turn to the extent of his compliance with the visa conditions to which he is subject.  I accept that the applicant appears to have been fastidious about reducing his number of hours of work to be within the allowable range.  However, he has made no attempts to re‑engage with study since returning to Australia in July 2017 and, therefore, I do not view his compliance with the requirements of his visa as being to an appropriate level.  I give this some weight against the applicant’s interests.

8. Having said that I do place some considerable weight on the fact that, despite returning to Pakistan on five previous occasions and returning to Australia, he did previously comply with his earlier visa requirements and this is to his credit.

9. When I questioned the applicant about the degree of hardship that might be caused to any family members, if his visa was cancelled, he said there would be none.  Accordingly, I give this consideration very little weight against cancelling the visa. 

10. I also asked the applicant if there were any persons who were dependent on his ability to remain in Australia and he said "No".  I asked him if he had any compelling reason for remaining in Australia and he said "No".  Accordingly, I find that there will be no hardship caused to the applicant or to other parties if this visa was cancelled.  These are matters I give some weight to in determining how to exercise the discretion not to cancel.

11. As to the circumstances in which the ground for cancellation arose, you have relied heavily on the financial and emotional impact upon you by the acrimonious breakdown of your parents' relationship.  While this is regrettable, and the emotional and financial impact upon you can be appreciated, I do note that you did not raise any compelling or compassionate grounds with your education provider at the relevant time and that you have not been consulting with a psychologist, a doctor, a social worker or a counsellor in connection with any of these impacts.

12. Accordingly, as a young man of 27 years of age living in a foreign country and managing to meet your commitments and contribute to your local community it appears to me that you have the emotional and financial resources to support yourself regardless.  Accordingly, to the extent that these circumstances might have been relevant to your initial decision to discontinue your studies they do not appear to me to be compelling reasons why you have abandoned your studies for such a considerable period of time.  As discussed above already, I particularly note that you returned to this country in July 2017 on a student visa and have not taken any steps since that time to secure an enrolment in any course of study, a period of time which is some 20 months.

13. There is no evidence before me to suggest that you have been uncooperative with the Department.  I give that some weigh in your favour. 

14. I do not have any evidence before me to suggest that there are other persons in Australia whose visas would be cancelled pursuant to s.140 as a result of your visa being cancelled. 

15. Neither is there any evidence before me to suggest that any international obligations would be breached as a result of the visa cancellation.

16. I have also considered the legal consequences of cancellation.  The laws in Australia relating to the cancellation of visas and whether or not a person is subject to administrative detention prior to removal from Australia are laws of general application.  I do not see that they have a particularly undue impact upon you. 

17. I note that there may be other visas that you may wish to apply for that would be open to you.  However, I do accept that public interest criterion 4013 may limit a grant of temporary visas to you for a period of time, but in the future all things being equal there is no reason to suspect that you would be denied a visa for any particular purpose other than the statutory bars.  I give these matters some consideration in your favour.

Decision

1. Having found that you were not enrolled in a registered course of study or training between 2 February 2017 and 14 November 2017 and have not been so since then, I then found that you have not complied with a core requirement condition 8202(1) of your visa and therefore the requirements under section 116(1) of the Migration Act for cancellation of a visa has been made out.

2. As to whether or not your visa should be cancelled, the decision of the Tribunal has considered the relevant matters pertaining to the discretion not to cancel and finds that the decision to cancel your TU 572 student visa should be affirmed.

END OF ORAL DECISION  [10.28 am]