Sohail (Migration)

[2020] AATA 1227

Sohail (Migration) [2020] AATA 1227 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Sohail

CASE NUMBER:  1814739

HOME AFFAIRS REFERENCE(S):          BCC2018/29495

MEMBER:Wendy Banfield

DATE:5 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 February 2020 at 1:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – remaining an eligible higher degree student – enrolment in a registered Higher Education course ceased – applicant changed to diploma courses – limited academic progress – family bereavements – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 573.223; Schedule 8; Condition 8516; r 1.40

CASES

Singh v MIBP [2016] FCA 679           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with a condition of the visa. In accordance with condition 8516 the applicant must continue to be a person who would satisfy the primary criteria for the grant of the 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.

   Background

3. The applicant is a citizen of Pakistan and is currently 28 years old. He came to Australia on 20 January 2016 as the holder of Subclass 573 Student visa. The applicant was enrolled in an Intensive Foundation Program at Macquarie University leading to a Bachelor degree. The applicant did not complete the foundation course and did not progress to a degree. At the time of the hearing, the applicant had enrolled in a Diploma of Business and a Graduate Diploma of Management.

4. The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.

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

6. Prior to the hearing the applicant submitted the following evidence:

   ·     Confirmation of Enrolment Certificate (COE) for a Diploma of Business commencing 25/11/2019 and ending 22/11/2020;

   ·     COE for a Graduate Certificate in Management (Learning) commencing 25/01/2021 and ending 23/01/2022.

7. The applicant provided evidence to the Department that has also been taken into account in this decision. The submissions consisted the following:

   ·     Applicant’s written submission dated 30 April 2018;

   ·     Photo of prescription medicine bottle in the name of the applicant;

   ·     COE for a Diploma of Information Technology (IT) commencing 08/01/2018 and ending 04/01/2019;

   ·     Evidence of the applicant’s enrolment in a General English course in 2017;

   ·     Medical documentation and death certificates in relation to the applicant’s family members;

   ·     Identity documents for Ahmed Sohail;

   ·     Counselling report in relation to the applicant (undated).

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa.

11. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

12. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.

13. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an Advanced Diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

14. The applicant’s Student visa had been granted on the basis that he was enrolled in an Intensive Foundation Program and a Bachelor of Arts – Psychology at Macquarie University. Although he began his Foundation course he did not complete it successfully and was unable to proceed to a Bachelor degree. As a result his enrolment in higher education was cancelled. Although it appears the applicant re-enrolled in the Foundation course, he did not progress to a Bachelor degree. The applicant then completed a General English course and at the time his visa was cancelled, he was studying a Diploma of Information Technology (IT) in the vocational education sector. The applicant has therefore not complied with the requirement to study higher education, which was the purpose of the visa grant and was a condition attached to the visa.

15. The applicant did not dispute the Department’s assessment of his study history in its decision record of 15 May 2018 but initially he did not agree there were grounds to cancel his visa. In his evidence at the Tribunal hearing the applicant said his agent was responsible for his enrolment. He claimed he had been advised by his agent to begin a Diploma course and he would then be able to enrol in a degree program. The applicant then agreed that he had enrolled in a course that was not in the higher education sector and when the Tribunal put it to him that in that case, there were grounds to cancel his visa he agreed that was the case. The Tribunal finds that while the applicant may have used the services of an agent to assist him, he is ultimately responsible for ensuring he complies with the conditions attached to his Student visa.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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 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

18. The applicant arrived in Australia to study a university foundation program and a Bachelor degree. Although the applicant did not maintain enrolment in the higher education sector as required, according to the evidence he commenced his Intensive Foundation Program at Macquarie University. For this reason, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

19. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said degrees from Australia are internationally recognised and are more valuable in his home country than local qualifications. He said his exposure to other people and cultures in Australia are also important, he has faced a lot of challenges but has since settled down and learnt to be independent.

20. The Tribunal has considered the applicant’s submissions and accepts he may wish to remain in Australia and continue studying, however, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

22. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant referred to the difficulties he faced when he first came to Australia and said he would be devastated if he is unable to achieve what he came here to do. The applicant said if he goes back to his home country without a degree his father will not be able to cope with it. He also submitted his plans to expand his father’s restaurant business into a franchise will be affected. The Tribunal accepts there will be a degree of hardship caused as a result of his visa being cancelled and places some weight in his favour in this regard.

23. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

24. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not maintain enrolment in the higher education sector. This was a breach of condition 8516 attached to the visa. The applicant gave reasons for his situation; he advised the Department and the Tribunal that his best friend was murdered in Pakistan in December 2012, his uncle died in June 2016; his grandfather in December 2017 and his parents had both been diagnosed with health conditions. As a result the applicant submitted he suffered depression and anxiety. He provided death certificates and medical evidence in relation to his family members and an undated report from a counsellor concerning himself.

25. The Tribunal sympathises with the applicant regarding his personal problems; in particular, the ill health and death of people close to him.  Nevertheless, the applicant’s response to those matters was within his control. It was open to him to defer his studies and return to Pakistan until he was in a position to continue his academic pursuits. On the evidence, he did return to his home country in July 2016 for compassionate reasons but returned to Australia in September. Alternatively, he could have applied for a different visa class if he wanted to study at a vocational level instead of the higher education sector. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his Student visa. If a visa holder’s physical or mental health is such that they are not able to continue studying at the required level or at all, it is their responsibility to take steps to ensure they do not breach the conditions of their visa.

26. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study in the higher education sector or seek a deferment of his studies, in breach of visa conditions. The Tribunal accepts the applicant faced some personal difficulties while in Australia as a student but is only able to give limited weight in his favour on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

29. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. During the Tribunal hearing the applicant gave evidence that he did not consider returning to his home country when stressful events were affecting his studies because it was a life threatening situation for him. The applicant claimed he was a witness in a murder case involving his best friend. The Tribunal pointed out he had returned to Pakistan since then and he agreed but said his father did not want him and his sister there. The applicant said his friend’s murder was a high profile, political matter. He said he is not planning to return to his home country and would go to Dubai or elsewhere in the world where he has relatives after studying in Australia.

30. The applicant made reference to alleged incidences of death, violence and corruption in his home country. He said there have been reports of shots fired at his family home and that of other witnesses in the murder case. The applicant agreed he had not actually been there when his friend was killed but his earlier evidence was that he was trying to call the victim on the phone, a claim he reiterated at the hearing. He said his family’s movements have been restricted and his father had to move.

31. The Tribunal notes the applicant has not made any protection claims as a result of alleged concerns for his safety in Pakistan. In addition, the friend’s death occurred in 2012, several years before the applicant arrived in Australia in 2016. He has also returned once in that time from 22 July to 9 September 2016. Without independent evidence that the applicant would be in danger, the Tribunal does not place any weight on his claims.

    ·     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

32. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. As stated, the applicant has not applied for protection based on his claims that returning to his home country would be life threatening. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

33. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

34. At the time of the visa cancellation, the applicant was enrolled in a Diploma of IT that started on 8 January 2018 and was due to end on 4 January 2019. At the hearing the applicant advised he studied the course for 6 months but did not complete it as he decided he did not want to pursue IT. The applicant submitted new COEs for a Diploma of Business and Graduate Certificate in Management (Learning) to the Tribunal on the day of the hearing. While the applicant provided new enrolment details, his study history in Australia since his arrival on 20 January 2016 is poor and the Tribunal is not satisfied he would complete the courses he enrolled in prior to the hearing.

    Conclusion

35. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Wendy Banfield
    Member