Sohaib (Migration)

[2018] AATA 4175

Sohaib (Migration) [2018] AATA 4175 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Muhammad Sohaib

CASE NUMBER:  1704877

HOME AFFAIRS REFERENCE(S):           BCC2017/336094

MEMBER:Stephen Witts

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 September 2018 at 12:15pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – enrolment cancelled – non-attendance at course – natural disaster in home country – significance of breach – higher level studies – completion of first year – decision under review set aside

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 9 March 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 applicant’s visa on 9 March 2017 on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the visa. Specifically, the delegate contended that the applicant was not enrolled in a registered course from 28 June 2016 until 22 February 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. The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

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

8. At the hearing the Tribunal had a discussion with the applicant regarding his enrolment status between 28 June 2016 and 22 February 2017. In this discussion the applicant acknowledged that he was not enrolled to study during this period of time.

9. 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).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

11. 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’

12. The Tribunal has considered any submissions provided to the department or to the Tribunal and also the evidence taken at hearing and presented to the Tribunal.

13. On 6 March 2017 the applicant provided the following submission to the delegate (delegate’s file Folio 54):

    I tried sending my documents with my first response to NOICC but attachments did not reach there, I don’t know why it happened. I was pretty sure of sending all documents as attachments to Victoria general cancellations until I received an email from VGC that they only received a copy of COE. After that I got very worried and tried sending documents again twice but every time I received an automatic reply and I am not sure of whether my email with attachments has reached there. I am still very worried and confused why this is happening. I am sending express email to Victoria general cancellations with copies of my documents. I apologise for any inconvenience I caused. Please do not take this as bad impression.

14. On 3 March 2017 the applicant provided the following statutory declaration to the delegate (delegate’s file folio 65):

    I am a genuine student. Whatever happened during the last several months was due to unfortunate events, unintentional reasons and CIC’s ambiguous and hopeful promises. I have been trying to make everything right. My study is not complete yet, I request to be allowed to complete my studies. I promise this situation will not arise again.

15. On 7 February 2018 the applicant sent the following submission to the Tribunal (AAT file folio 23):

    I am studying advanced diploma of business leading to bachelor of accounting from Stott’s College. My IELTS score was seven overall. I am a genuine student who always took interest in learning and educational activities of all kinds. I have desirous attitude towards learning not only accounting but geology, palaeontology, anthropology, evolutionary biology, cosmology, economic systems, capitalism, investment methods, entrepreneurship, modern sciences, quantum physics, new discoveries in physics and other scientific theories. I have always followed the greatest scientists and public lecture of modern time like, Lawrence Krauts (a universe out of nothing, book), Stephen Hawking (a brief history of science, book) Neal Tyson (welcome to the universe, book) Richard Hawkins (a brief candle in the dark, book Allen Guth (presented the inflationary theory), Jack Ma and Elon musk. It’s my passion to read about economic, other sciences and successful business people. That period of my life from 28 to 2017 to 23 February doesn’t define my real self. I was not enrolled during this time period because of unfortunate events and delays from CIC management.

    There were bad things happening in my life which lead me to that situation as I mentioned previously that there was an earthquake in my country which hit badly Gujranwala and many neighbouring cities. This new story was published on Pakistan today and reported by US geological survey that the magnitude of that earthquake was 7.1 and the tremors were felt from Afghanistan to India. Telephone lines were cut, electricity was gone for almost a week, and emergency was announced in hospitals. In this catastrophic event my home there suffered structural damage and my brother got injured and it. First my family denied any damage just to not make me worried about them but later on I got to know which serious affected my physical and mental health on a decide to go back but my father insisted me to stay in Australia and focus on my study because the house was not in a position to live in and they were in huge trouble accommodation because of that. So they told me there is no point to come here and just stay in focus their. But this event affected me so much, I couldn’t pay attention to anything, couldn’t start my studies on time and got cancelled. I sent the pictures of my house construction as an evidence for that. Later on when I got stabilised mentally and physically, I went to CIC they told me for re-enrolment and I filled the form is much as I could then went back to reception after a few days and with fees to get enrolled they told me they can’t take me because of orders is going on. So I had to wait for some time. I went back again and they told me that there course structure is changed now. Now I can’t get enrolled in diploma leading to degree but I have to get in degree program for three years instead of six months of diploma leading to two-year of accounting degree, another twist. It was strange but I agreed and was told to come after some time because they have limited seats for students than they are taking the best ones first and is kept on and on until I met some of the professional lawyers/consultants who advise me to enrolled anywhere ASAP as it was breach of my Visa condition.

    On nine February I got off a letter from Stott’s colleges. Please note this, that I got email from Department (embassy) on 10 February which shows that I was worried about my studies and making genuine attempts to get enrolled anywhere to fix up the things. I have been trying all this time to get on track because I am here to complete my studies. I feel the need for that in this competent world. If I hadn’t received email from embassy, I would have paid fee and got enrolled in registered course already. Even after all this my Visa got cancelled which put me under immense mental pressure and tears were in my eyes. After the saddest moment of life I still got permission of study on my bridging Visa E and continue my study for a year because at no cost I would still stay still and let that bad period of my life come against me and stop my future study goals.

    (b) I do have the most compelling need to stay in Australia which is to build my future through studies. I will lose my identity as a person and going nowhere if I don’t stay here in this wonderful multicultural society of amazing people and opportunities. I need to finish my studies and stand on my feet, this is what my family is waiting for, and this is what I look for. If I go back I will not get a second chance to study again in my country. I know the traditions and culture there. I can’t even think of going back empty-handed after investing a part of my life in this country, in its culture and with its people.

    (c) I have always complied with Visa conditions and have never involved in any criminal activity or any indecent activity. I do not have any police record, traffic rule breaking or offence history. I do not hold any previous Visa or any other Visa.

    (d) There will be extremely unimaginable consequences if Visa is cancelled. I will not be allowed to study again back in my country under any circumstances. There is a saying in my country, you only get one chance to study if I go back it will be considered a failure on my side and I will be put into family business and marriage, and will be stuck there for the remaining of my life. I won’t get this chance back. Not to mention, I will be considered a shame for my family who couldn’t avail the chance to complete the study. I don’t want to end up like that, please. It would be horrifying.

    (e) I do think there are other matters that are relevant. Please note that I have been studying this whole time despite Visa cancellation. I had no rights to study but applied for study rights and kept on studying. I am learning enthusiastic in general. My most of time is spent in learning different fields of study, economic and sciences. I love reading peer-reviewed articles from nature, Cell and other journals. I have lots of saved articles on economic and science. Since I came here my hobbies are reading books and articles got strong. I am good, law-abiding and friendly person. I always made friends here. I have friends from Vietnam, from Japan from Sri Lanka and India etc from the core of my heart I want to say one thing which is, I learned so many positive things while living here. It made me a better person. Staying here gave me a different perspective of living a wonderful life. I hope I will get my chance.

    I request the esteemed authority to consider my request and explanation to allow me to study and fulfil my dreams.

16. It is noted by the Tribunal that in the applicant’s submission to the Tribunal, as above, the applicant acknowledges that he was not enrolled during the period of time from 28 June 2016 until 22 February 2017 as contended by the delegate.

17. As stated above the Tribunal had a discussion with the applicant and the applicant acknowledged that he was not enrolled during this period.

18. The information provided above to the Tribunal and information provided at the hearing has been considered by the Tribunal in its exercise of discretion as outlined below.

    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 applicant stated that he completed high school back in his home country of Pakistan and did not have any other educational qualifications prior to coming to Australia to study.

20. The applicant stated that he came here to Australia because he thought the value of an Australian degree would be much better considered upon return to his home country than a similar degree from his home country.

21. The applicant stated that he has a mother and father and three brothers back in his home country. He has two brothers studying back at home and one brother who is working in his father’s agricultural and warehouse business.

22. The applicant stated that he has not been home since 2015 and has not travelled anywhere else.

23. He stated that he is currently renting with friends in Melbourne and does not work. He stated that his father was paying for his studies.

24. The applicant stated that he did not start his original enrolment in his Bachelor of Business (Accounting) in June 2016 because of concern at that time due to an earthquake back in his home country in April 2016 which affected his family back at home. He stated that after an initial two or three week period at the start of his course in June 2016 he did contact CIC, the education provider, who notified him that they had cancelled his enrolment for non-attendance. The applicant stated that he was very concerned by this course of events but was not able to study at that time due to the trauma associated with circumstances back in Pakistan.

25. The applicant stated that he recommenced his study in June 2017 and has now completed a year of his Bachelor of Business (Accounting) and intends, if given the opportunity, to complete his bachelor level degree prior to going home and finding a professional job.

26. The applicant provided evidence of his subject attainment that demonstrated that he has been successful in studying towards his Bachelor of Business (Accounting) and has successfully completed his first year.

27. The applicant acknowledged that he had had a bad start here in Australia with his study and that his original enrolment was cancelled and that he was not studying during the period when the delegate cancelled his visa.

28. The applicant stated that he has now gone on to successfully study his bachelor level degree and could demonstrate course progression and wanted to finish his degree and then return home.

29. The applicant provided evidence of his family difficulties during the earthquake back in Pakistan in April 2016 and the Tribunal accepts that this was a real event which may have affected his family at that time.

30. The applicant stated that he does have a compelling need to finish his bachelor level course here in Australia as such a qualification is very well considered in Pakistan and he would be placed in a very difficult position with his family, and with his father in particular, after having paid for all his studies, not to be able to return home with a degree and start a professional career.

31. He also stated that at some point in the near future he would be married and needed to be able to present himself as a qualified person when he goes back to his home country.

    The extent of compliance with visa conditions

32. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimum weight to the fact that there appears to be no additional breaches.

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

33. The applicant stated that he would suffer significant hardship if he was forced to return home without a formal bachelor level qualification in business and accounting.

34. The applicant stated that since that time he has recovered from the trauma associated with events back in his home country and has, over the last 12 months or so, successfully studied towards his attainment of his Bachelor of Business (Accounting) which was the original course that he had enrolled to study when he first came here on his student visa.

    Circumstances in which grounds of cancellation arose

35. The applicant’s visa was cancelled by the delegate as a result of the applicant’s enrolment in a Bachelor of Business (Accounting) in June 2016 being cancelled by his course provider for non-attendance during the first few weeks of his course.

36. As stated above, the applicant has acknowledged that he was not enrolled between 28 June 2016 and 22 February 2017.

    Past and present conduct of the visa holder towards the Department

37. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department of the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

38. It is unlikely that the visa applicant will be detained but rather provided with a time-limited period in which you can leave the country or apply for review of the decision.

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

39. There is nothing before the Tribunal to indicate any international obligations to consider.

    Any other relevant matters

40. The Tribunal finds that the applicant has moved on from the difficulties caused by his family situation in June 2016 and has now successfully studied his first year of his bachelor level qualification in business and accounting.

41. The Tribunal places weight on the fact that the applicant acknowledged that he was not enrolled during the period of time that resulted in the cancellation of his visa. The Tribunal also places weight on the fact that the applicant is now studying at high level; and has now re-enrolled in his original bachelor level course and has successfully studied his first year.

42. The Tribunal accepts the applicant’s evidence that if given the opportunity he will successfully complete his qualification and return home.

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    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.