Shakeel (Migration) - [2019] AATA 2332

Shakeel (Migration) [2019] AATA 2332 (5 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Shakeel
CASE NUMBER:  1719834
HOME AFFAIRS REFERENCE(S):           BCC2017/2169578
MEMBER:Joseph Lindsay
DATE:5 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 June 2019 at 3:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breach of condition – failed to remain in registered course – missed enrolment – no compelling need to travel or remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202(2)(a)
CASES

Khant v Minister for Immigration & Citizenship [2009] FCA 1247
Manage v Minister for Immigration & Anor [2014] FCCA 1089
Zhang v Minister for Immigration & Anor [2018] FCCA 1946
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 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).
The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Applicant’s representation
Legal submissions
The applicant attended the hearing on 1 April 2019 with his representative, Mr Gurdial Singh Ranjit Singh.
The Tribunal spoke initially to the applicant’s agent, Mr Singh. Mr Singh, at the commencement of the hearing, provided the Tribunal full copies of a number of decisions: Manage v Minister for Immigration & Anor [2014] FCCA 1089, Zhang v Minister for Immigration & Anor [2018] FCCA 1946 and Khant v Minister for Immigration & Citizenship [2009] FCA 1247.
When the Tribunal asked Mr Singh to please explain why he had given full copies of these decisions to the Tribunal, he responded that it was to give the Tribunal a point of reference. The Tribunal again asked Mr Singh why he gave it copies of these decisions and, in particular, what part of the decisions he wanted the Tribunal to be aware of. In response, Mr Singh indicated he did not yet wish to make a submission to the Tribunal about the cases he provided, and wanted to wait to the end of the hearing.
At the end of the hearing, the only case Mr Singh wanted the Tribunal to expressly consider was Khant v Minister for Immigration & Citizenship [2009] FCA 1247. Mr Singh indicated that the Khant case was “all about reasonableness”, where the court found that the delegate did not ask important questions about critical information. Mr Singh indicated that, in respect to the applicant, the delegate made an unreasonable decision and failed to make relevant inquiries of the applicant. The Tribunal asked Mr Singh what inquiries the Tribunal failed to make during the course of the hearing. The Tribunal put to Mr Singh that the Tribunal was undertaking a “de novo” review and asked Mr Singh if there was any question that the Tribunal had failed to ask the applicant. In response, Mr Singh indicated that there were no further enquiries that the Tribunal needed to put to the applicant.
The Tribunal asked Mr Singh if he believed that the Tribunal had made any legal error during the course of the hearing. In response, Mr Singh indicated that he thought the Tribunal had not made any legal error during the course of the hearing.
Procedural matters
At the commencement of the hearing, Mr Singh indicated that he only recently became involved in representing the applicant and that he had not had a sufficient opportunity to prepare for the hearing.
The Tribunal put to Mr Singh that the applicant, through his previous agent, had initially been given an invitation to attend a hearing on 22 March 2019. On 7 March 2019, the previous agent responded to the Tribunal with a signed hearing invitation indicating the applicant would attend the hearing. On the same day, 7 March 2019, the applicant wrote an email to the Tribunal indicating that he was no longer represented by his previous agent and that he wanted to change agents. On 12 March 2019, the applicant’s current agent, Mr Singh, wrote to the Tribunal enclosing a form MR5, in which the applicant had appointed Mr Singh as his new representative.
The applicant said to the Tribunal that he had changed agents and that he wanted extra time in order to prepare for the hearing. The Tribunal explained to the applicant that he had actually been given additional time. The Tribunal explained that since Mr Singh had taken over as the appointed representative on 12 March 2019, the Tribunal had granted Mr Singh’s request for a postponement of the hearing and set the new hearing date for 1 April 2019. The Tribunal put to Mr Singh that he had been given sufficient opportunity to prepare for the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In his application for review, the applicant provided a copy of the decision record from the Department that found the applicant had not been enrolled in a registered course of study between 25 November 2016 and 6 June 2017.
The Tribunal put these facts to the applicant, and the applicant agreed that he had not been enrolled in a registered course of study between 25 November 2016 and 6 June 2017.
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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
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 circumstances in which the ground for cancellation arose
The Tribunal spoke to the applicant about the circumstances in which the ground for cancellation arose.
The applicant recounted his course history in Australia since his arrival in December 2015.
The applicant indicated that a significant part of his difficulties was in relation to his English abilities. He indicated that when he first came from Pakistan his English was not so good.
He indicated that when he first started studying, he undertook the English for Academic Purposes (EAP1) course but because his English was so weak the course took longer to complete. He indicated the course took 15 weeks to complete rather than 10 weeks.
The applicant indicated that he then missed his enrolment in the English for Academic Purposes (EAP2) course in November 2016. He got an email from his provider saying that if he missed the enrolment his Confirmation of Enrolment (COE) would be cancelled.
The applicant explained that he consulted a person at Cambridge College, named Jagen Thang Raja (Jagen). The applicant explained that Jagen told him he had to take evening classes but that he was not comfortable with evening classes and he said he wanted morning classes.
Ultimately, the applicant indicated that he never started EAP2 and he did not make any further arrangements with either his course provider or the Department to address his problems.
The applicant admitted that he subsequently obtained a later enrolment (Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management) in an attempt to keep his student visa in place. The applicant indicated his intent was never to do these courses, and that he only was going to enrol in a further English language course to improve his English skills in order to then again enrol in the Bachelor of Business (Accounting) course.
The applicant also referred to a number of other difficulties he experienced. He indicated that he had to move houses because in the first house he shared with other people they used to smoke and drink. He indicated this made him uncomfortable and so he moved to a second house. However, after moving to the second house he was asked to vacate. He indicated that he was a new student and that he had just had completed his intermediate studies in Pakistan and had never had travelled to another country before.
The Tribunal spoke to the applicant about his English language abilities. In the hearing, the applicant required the use of an interpreter for the entire duration of the hearing. The Tribunal asked the applicant how the Tribunal could be satisfied that he had a sufficient level of English skills to be able to undertake and complete a higher education course, noting he had indicated he required the use of an interpreter for the entire duration of the hearing.
In response, the applicant indicated that he had come from a background where English was not his first language and that he had come to Australia to improve his English language skills. The applicant indicated he was reasonably aware that as part of gaining a student visa he was required to be able to read, write and speak a reasonable standard of English so that he could successfully undertake and complete a tertiary course of study in Australia.
The Tribunal asked the applicant what he had done to improve his English language ability since he had come to Australia in 2015. The applicant indicated that he had done the EAP1 course but that when his student visa was going to be cancelled in enrolled in another course so he could do a further English course.
The Tribunal put to the applicant that he had indicated throughout the hearing that English was a challenge for him. The Tribunal put to the applicant that, whatever course he was enrolled in, he would still have to deal with the issue of his English skills. The Tribunal put to the applicant that since the time he had completed EAP1 in 2016, apart from wanting to enrol in a further English course he did not do, he had done nothing to improve his English skills.
In response, the applicant indicated that when he first came to Australia he could only comprehend about 20% of what an Australian English speaker said to him. The applicant said that at the hearing he completely understood what the Tribunal had said to him but that he was using the interpreter so that he could have a “safe hand” and so he could explain everything carefully and ensure that nothing was left out.
However, the applicant indicated to the Tribunal he could understand why the Tribunal had put concerns about his English skills to him. The applicant said his English has improved a lot. He explained that he could have explained to the Tribunal in English rather than using the interpreter but he did not want to take a risk and make grammatical errors.
The Tribunal made it clear to the applicant several times that it had no problem with the applicant using the interpreter at the hearing, other than noting the concerns the Tribunal had put to the applicant throughout the hearing about his apparent level of English.
Based on the above, the Tribunal makes the following findings:
·The Tribunal accepts that the applicant has provided truthful information to the Tribunal about his student enrolment history and also in regard to the circumstances in which the ground for cancellation arose.
·The applicant’s student history as he indicated at the hearing is accurately reflected in his Provider Registration and International Student Management System (PRISMS) record.
·The applicant did complete EAP1 in 2016 but no other courses since that time.
·The applicant did make some contact with his course provider in respect to his enrolment in EAP2 but, in the circumstances, the applicant failed to take reasonable steps to engage with his course provider in order to progress his course enrolment.
·The applicant did not contact the Department in an endeavour to resolve issues with his course enrolment.
·The Tribunal accepts that the applicant experienced other difficulties, in that he was a new student and that he had just had completed his intermediate studies in Pakistan and had never travelled to another country before. The Tribunal accepts that the applicant had to move houses because in the first house he shared with other people they used to smoke and drink and this made him uncomfortable. The Tribunal accepts that the applicant had to move to a second house but was then asked to vacate. The Tribunal places some weight on these circumstances in the applicant’s favour.
·The Tribunal accepts that the applicant received the assistance of Carina Ford Immigration Lawyers who assisted him to respond to the Notice of Intent to Consider Cancellation (NOICC) and the Tribunal has considered this response. The Tribunal accepts that the applicant felt alone and homesick and that he was very close to his family. The Tribunal places some weight on these circumstances in the applicant’s favour.
·The Tribunal accepts that the applicant had come from a background where English was not his first language and that he had come to Australia to improve his English language skills. However, the Tribunal finds that despite the lengthy period of time the applicant has been in Australia, his English language skills remain poor. The Tribunal finds that applicant was reasonably aware of his poor English language skills and that this issue significantly contributed to the reason why he ceased his course enrolment in late 2016. The Tribunal finds that since the applicant ceased his course enrolment in late 2016, and noting the applicant has not been granted study rights on his Bridging Visa E, the applicant still has not taken reasonable steps in all the circumstances to improve his English language skills since late 2016. Accordingly, the Tribunal finds that even if the applicant were to have a student visa, his English skills are such that it is unlikely he could successfully undertake and complete a tertiary course of study in Australia. The Tribunal places high weight on these facts.
In balancing the above findings, the Tribunal places low weight in the applicant’s favour in respect to the circumstances in which the ground for cancellation arose, that is, where the applicant was not enrolled in a registered course of study between 25 November 2016 and 6 June 2017.
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
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
Based on the applicant’s evidence at the hearing, the Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202.
The Tribunal also notes Mr Singh’s reference to paragraph 12 of the written response to the NOICC that refers to the applicant’s re-enrolment before being issued the NOICC, and that the period of non-enrolment of seven months was a relatively minor breach.
In consideration of the above, the Tribunal does not accept that the applicant’s period of non-enrolment of seven months was a relatively minor breach and it places some weight on the applicant’s re-enrolment before being given the NOICC. However, in balancing the above considerations, the Tribunal gives low overall weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the hearing, the Tribunal spoke to the applicant about the hardships he would face if his student visa was cancelled.
In response, the applicant indicated that if his student visa was cancelled and he returned to Pakistan, his family would be disappointed. The applicant indicated that it wasn’t just the expectations of his family but there was also the question of his education. The applicant indicated that he was the eldest in his family and that all of his siblings looked up to him. He indicated that he was the first one of his family to go out of the country to study and this was a privilege. He indicated that it was very important to his father that he get an education because his father was uneducated. The applicant indicated it was very important that he was able to go back to Pakistan and take over the family business.
The Tribunal accepts that the applicant would likely face the hardships he indicated. In balancing the applicant’s concerns and the Tribunal’s findings above, the Tribunal gives low weight overall in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
The applicant has no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.
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
The applicant indicated he was very much aware of the legal consequences of the cancellation of his student visa and that he was made aware of the legal consequences from the Department’s decision.
As indicated above, the applicant is very much aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Pakistan.

The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia. The Tribunal places low weight on this information in the applicant’s favour.
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
The Tribunal asked the applicant whether he had any fear in going back to Pakistan. The applicant claimed he had no fear at all about anything in returning to Pakistan.
In consideration of the above, the Tribunal finds that there would be no breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.
Any other relevant matters
When asked if there were any further relevant matters, the applicant said he did make a mistake, but that he was not being untruthful to the Tribunal. The applicant asked the Tribunal to take into consideration that his whole life was at stake when making its decision.
In respect to the above, the Tribunal has already found that the applicant was truthful during the course of the hearing. The Tribunal is aware that its decision in respect to the applicant’s student visa will impact the applicant’s future in some respect. However, the applicant did not expressly identify any other relevant matters he wanted the Tribunal to consider.
There are no other relevant matters before the Tribunal.
Conclusion
The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 11 December 2015.
The Tribunal finds that the applicant was not enrolled in a registered course of study between 25 November 2016 and 6 June 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).
The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Joseph Lindsay

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.