Shujah (Migration)

[2017] AATA 2552

Shujah (Migration) [2017] AATA 2552 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asim Shujah

CASE NUMBER:  1612600

DIBP REFERENCE(S):  BCC2016/2400851

MEMBER:Antoinette Younes

DATE:4 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2017 at 11:05am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Parents financially supported applicant – Parents facing financial hardship – Degree of financial hardship does not outweigh cancellation

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8, Condition 8202

CASES

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 2016 made by a delegate of the Minister for Immigration 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 breached condition 8202 attached to his 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.

3. The applicant appeared before the Tribunal on 23 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant had provided to the Tribunal in support of the application for review. Relevantly, the Tribunal noted that information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 8 July 2015. The applicant agreed with this information and provided explanations as outlined below.

10. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

11. As the applicant has not complied with the visa condition, the ground for cancellation in s.116(1)(b) arises.

    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 to exercise its discretion to cancel the visa.

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    The purpose of the applicant’s travel to and stay in Australia

14. The applicant was granted the visa to study in Australia and although the Tribunal has some doubts, the Tribunal accepts as plausible that the applicant’s purpose to travel and stay was to study.

    Reason and extent of any breach of a visa condition (if relevant)

15. On 1 August 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded in a statutory declaration dated 5 August 2016.  In the statutory declaration, the applicant indicated that:

    a.He studied in England for two years. He had friends who studied in Australia so he planned to come to Australia. He applied for a student visa at the end of November 2014 which was granted in December 2014. He depended on his father for financial support and he knew that he was only allowed to work 20 hours a week. His father deposited $50-$60,000 in his account and the applicant did not know that his father took the money out subsequently. His father did not know that he was going to use that money and they genuinely believed that the money would be available for the applicant.

    b.The family had commercial land and a person got judgement against his father. His father had to use the money and consequently the applicant enrolled in one subject only and he stopped studying in February 2015.  Around May 2015, he started working 20 hours a week. In March 2016, his father asked him if he needed money which he was able to give to the applicant.

    c.He wanted to enrol in a course by March 2016 for the first semester but he did not want to risk losing any paid fees as a result of the visa cancellation. He intended to undertake 5 to 6 subjects in each semester to catch up.

    d.He is still working 20 hours a week and he did not want to breach any visa condition. The issue with the money was outside his control and that of his father’s.

    e.He has strong ambitions and would like to have his own business. Although they are not in a relationship, he is currently seeing someone in Australia. They met at a friend’s birthday party and he thinks the relationship is serious. He does not know anyone else in Australia who would be impacted in case of his departure.

16. In support, the applicant provided to the Department a document titled Affidavit relating to the land issue.

17. The applicant provided to the Tribunal documents relating to a Court case and a statutory declaration dated 18 August 2017 in which he provided a comprehensive account of the land issue noting that:

    a.Everything is now back to normal but there are problems in relation to the land of the family shop. Although his family has won the court case, the issue is still ongoing because the other party is taking the matter to the Supreme Court. The family still has to fight the bank. The fight with the bank started in 1998. His family has recently commenced action against the bank to recover 30 years of rent. The land is ancestral land.

    b.He can now afford to pay for his studies. The problem with the shop is ongoing and would be a problem for him in case of his return. The family has received police complaints from the bank. A false report has been made against his brother.  His father is 63 years old and cannot look after the shop.  If he were to return, he would be involved in the shop issue which is escalating.  Although the student visa has expired, he would like to get another visa.  He cannot commit money to a course because he does not know if he has to leave Australia.  He does not want to be in Pakistan where he would be worried about the government trying to get the land back.

18. In the course of the hearing, the applicant gave evidence that he came to Australia in 2014 to undertake a Masters of Professional Accounting degree at Holmes and that prior to commencing the degree, he undertook an English course. The Tribunal asked him about his progress in the Masters of Professional Accounting degree and he stated that he studied for one month only in the course because he was not able to pay the fees. He stated that he had only paid for two subjects and consequently in early 2015 he stopped attending college. He stated that he did not return to his studies because he was waiting for money. He stated that around September or October 2015, he received $30,000 but because he had heard that if he did not study for 28 days, his visa would be cancelled. He stated that he did not seek professional advice and he realises that he should have. He stated that he knew about visa conditions and his friends had told him that his visa would be cancelled.

19. The Tribunal asked the applicant about the land issue as noted in the documents provided to the Tribunal. He stated that his father had owned a commercial shop next to the Punjab co-operative. He stated that the land on which the shop was located was ancestral land but the government took action in 2011 which is still ongoing. The applicant stated that about 1 to 2 months ago, the bank made a false claim that the applicant’s brother had tried to rob the bank. The Tribunal asked the applicant about his fear of harm and he stated that he fears that the bank would make false allegations against him personally. The Tribunal asked him if he has lodged an application for a protection visa and he stated that he has not because he is still looking at options to study.

20. The applicant gave evidence that there was also another case involving agricultural land. He said his family in Pakistan was involved in a dispute that commenced in 2015 which led to his father taking money back to cover the cost of that dispute. The applicant stated that the matter has now been resolved.

21. Although the applicant has not provided corroborative evidence about the actual financial impact, he has provided evidence of the disputes. The Tribunal accepts as plausible that there have been two disputes involving the applicant’s family in Pakistan and that it is plausible that his father had to use the funds which consequently impacted the applicant’s ability to pay tuition fees. The Tribunal gives this aspect some weight in favour of the applicant however on his own evidence, when the applicant was facing financial difficulties, he did not seek advice and he relied on his friends’ comments rather than attempt to resolve the issue. The applicant came to Australia with the intention of undertaking a postgraduate degree.  He attended classes for one month and the Tribunal considers this to be inconsistent with his intentions and aspirations to complete a postgraduate degree in Australia.

22. Whilst the Tribunal has some doubts about the applicant’s intentions, those doubts are insufficient to make a finding that the applicant did not intend to undertake studies in Australia. However, the Tribunal finds it difficult to accept that the applicant would attend classes for only one month and subsequently choose not to take any action in relation to his inability to pay his tuition fees. The Tribunal does not intend to sound harsh or unsympathetic, however it is reasonable to expect that as an overseas student, the applicant pays his tuition fees or makes other arrangements. The Tribunal notes his acknowledgement in the course of the hearing that he should have taken action and the Tribunal gives this some weight, it is however the applicant’s responsibility to ensure compliance with visa conditions. The Tribunal considers the breach in this instance to be significant and means that the visa should be cancelled.

    Degree of hardship that may be caused

23. In response to the notice of intention to consider cancellation, the applicant noted that it is very hard for him to return to Pakistan without finishing his course; he has to start all over again and his family would expect him to work in the business. He wants to do poultry farming. His family has been involved in wheat farming. The family has a small farm but it is not used for commercial purposes. He has worked in his father’s business, importing seeds from China and herbal medicines from India. He used to manage the business operations.

24. In submissions to the Tribunal, the applicant indicated that it is not easy for him to return to Pakistan after having spent three years in Australia and not having a degree. If he were to return, he would have to start from zero. He has always been honest with the Department and he came to Australia to study.

25. In oral submissions, the representative noted that although the visa has expired early this year, it is important for the applicant for the visa not to be cancelled, amongst other things, because the applicant does not want to be perceived as not being a genuine student.  The Tribunal is mindful that the visa was cancelled on the basis of breach of condition 8202.

26. The Tribunal asked the applicant about the relationship and he stated that he is no longer in a relationship. 

27. The Tribunal has considered the applicant’s submissions but finds it difficult to accept that in over 2 ½ years of being in Australia, the applicant has not achieved any of his claimed goals of study. His comments that he would have to start from zero in case of his return are difficult to reconcile with the fact that when he stopped studying, he remained in Australia working when presumably he could have returned to Pakistan rather than staying in Australia in breach of his visa condition and not achieving any of his study goals.

28. The Tribunal has considered the applicant’s explanations and circumstances and on balance the Tribunal is not satisfied that in the applicant’s case there is a degree of hardship to mean that the visa should not be cancelled.

29. The Tribunal is mindful that if the applicant’s visa were to be cancelled, he could become an unlawful noncitizen and he could be detained. He would have limited options to apply for further visas in Australia and may be required to return to Pakistan. The Tribunal is satisfied that those are intended consequences of the legislation and in the applicant’s case, they do not mean that the visa should not be cancelled.

30. Looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose

31. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The applicant’s personal circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    Past and present conduct of the visa holder towards the department

32. The applicant responded to the notice of intention to consider cancellation and the Tribunal has taken the applicant’s cooperative approach into account but the Tribunal is of the view that this does not mean that the visa should not be cancelled.

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

33. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

34. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that they do not mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

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

36. The applicant is claiming that he fears harm in returning to Pakistan on the basis that the bank could make false claims against him. He has not lodged an application for a protection visa and he explained the delay on the basis that the issue in relation to the false allegations against his brother is recent and he wants to pursue a study pathway. In oral submissions, the applicant’s representative indicated that as the applicant was not aware of all the issues relating to the land dispute and to the false allegations against his brother, he has not lodged an application for a protection visa.

37. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. The Tribunal is satisfied that it is open to the applicant to lodge an application for a protection visa and any relevant claims for protection would be properly considered by a decision-maker.

    The impact on any victims of family violence

38. There is no evidence of family violence in this case.

    Any other relevant matters raised by the visa holder

39. There are no other matters requiring consideration by the Tribunal.

40. The Tribunal has carefully considered the applicant’s reasons for the non-compliance individually and cumulatively. On balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Antoinette Younes

    
    Senior 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.