Tahir (Migration)

[2017] AATA 2766

Tahir (Migration) [2017] AATA 2766 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruwafa Tahir

CASE NUMBER:  1618286

DIBP REFERENCE(S):  BCC2016/2802600

MEMBER:Christine Kannis

DATE:20 December 2017

PLACE OF DECISION:  Perth

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

Statement made on 20 December 2017 at 7:30am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Significant period spent not studying - Various medical conditions

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 October 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant requested a review of the cancellation decision by this Tribunal. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.  

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. 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. Relevant 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?

7. On 4 August 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was not enrolled in registered course of study from 15 July 2015. His enrolment in a Bachelor of Commerce and the pathway course of a Diploma of Commerce was cancelled on 15 July 2015.

9. Having regard to the information on PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 15 July 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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).

12. On 13 October 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

13. On 20 October 2016 the applicant responded to the NOICC and said he did not agree that there were grounds for cancellation. He provided the following reasons to support his contention:

    ·He struggled to live in Australia without the support of his family, in particular his father’s support. As a result he suffered depression and anxiety and was not able to continue his studies.

    ·He fell sick with severe allergic rhinitis and had a very high IgE level.

    ·He tried to return to his family but due to issues back home he was unable to return because it would have ruined his father’s life as well as his own life. He said to return home would result in mental torture from his father’s family.

14. The applicant told the Tribunal that his father sent him to Australia to study. His father decided that he would study a Bachelor of Commerce. His father’s family had given his father money to send him to study in Australia.

15. The applicant said that when he came to Australia in 2014, it was the first time in his life that he had lived without his father. He felt homesick but knew he could not return to Pakistan because of the mental torture his father’s family would inflict on him and his father. When asked to explain what he meant by mental torture he said his father’s family would demand that the money they had provided for him to study in Australia be repaid.

16. The applicant told the Tribunal that he also suffered with nasal polyps in 2015. He had surgery for this condition in Pakistan in 2010. The condition results in sleep problems and headaches because he is unable to breathe through his nose. He needs surgery again but he cannot afford the cost of the surgery in Australia. He said it would cost $7,000.

17. The applicant contended that his nasal polyps condition was the reason he ceased studying in 2015.

18. The applicant told the Tribunal that he has been prescribed anti-depressant medication however that was in 2016, after cancellation of his visa.

19. Following the hearing the applicant provided evidence (a letter and a receipt) that he had seen a General Practitioner in July 2015 with respect to his allergic rhinitis and high IgE level. He was referred to Dr Richard Nolan of Perth Allergy. He attended Perth Allergy in November 2015 and underwent skin sensitivity testing for allergens. A receipt for this attendance and testing dated 12 November 2015 was provided. A receipt dated 16 February 2016 in relation to a sweat test was provided. Additional receipts from a pharmacy dated 21 February 2017 and from a Medical Centre dated 8 December 2017 were provided.

20. The Tribunal considered the documentary evidence provided following the hearing. The Tribunal decided the evidence did not establish that the applicant’s medical conditions resulted in him being unable to continue his study.

21. The applicant told the Tribunal that he found the Bachelor of Commerce course too difficult. He wanted to apply for a release from the course and in the first half of 2015 he discussed changing his course with a migration agent. He wanted to change to a course in Management/Hospitality however the agent advised him against changing his course at that time. He said a Management/Hospitality course would be easier than the Bachelor of Commerce course.

22. Noting the applicant’s evidence was that in the first half of 2015 he wanted to change his course, the Tribunal asked him how he believed he would be able to study a new course given his evidence that his nasal polyps condition was the reason he ceased studying. He said he would have returned to Pakistan for surgery once he had a Confirmation of Enrolment (CoE) in the new course.

23. The Tribunal asked the applicant about how he had intended to use his Bachelor of Commerce qualification. He said he intended to return to Pakistan and work in his father’s hardware business. Notably the applicant told the Tribunal that if he obtained a Management/Hospitality qualification, he would still work in his father’s hardware business when he returned to Pakistan. He said he would do nothing with that qualification however if he returned with some kind of qualification, his father’s family would not demand repayment of the money they provided to send him to Australia.

24. When asked about the hardship he will face if his visa remains cancelled, the applicant referred again to the fact that his father’s family would demand repayment of the money they provided to send him to Australia.

25. The applicant told the Tribunal that since his enrolment was cancelled on 15 July 2015, he has remained onshore without studying. He said he has been doing nothing since cancellation of his visa.

26. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as contended in the applicant’s oral evidence.

    Conclusion

27. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 15 July 2015 and 15 months elapsed from that date until the NOICC was issued.

28. The applicant’s visa was granted for the purpose of him studying the principal course of study of a Bachelor of Commerce. He told the Tribunal that his father chose the course for him. He said it was too difficult and he wanted to change to an easier course. He discussed changing his course with a migration agent in the first half of 2015, before cancellation of his enrolment.

29. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he is not engaging in study for which his visa was granted and is not fulfilling the purpose of his travel to and stay in Australia.

30. The Tribunal finds that there are no extenuating or compassionate circumstances in this case. The Tribunal finds that the circumstances that led to the applicant ceasing to be enrolled from 15 July 2015 were not beyond his control. The Tribunal does not accept the applicant’s evidence that his nasal polyps condition was the reason he ceased study. The Tribunal considers it likely that the applicant ceased studying because the Bachelor of Commerce course was too difficult. His evidence was that he wanted to change to an easier course.

31. The Tribunal accepts that the applicant may suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The applicant’s evidence did not indicate that he has a strong desire to obtain any particular qualification in Australia for the purposes of future employment. His reason for wanting to obtain a qualification was to ensure his father’s family would not demand repayment of money they provided for him to study in Australia .The Tribunal also accepts the applicant’s evidence that his father’s family will cause hardship to him and his father by demanding repayment of the money.

32. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

33. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.