Tariq (Migration)

[2019] AATA 4644

Tariq (Migration) [2019] AATA 4644 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omair Tariq

CASE NUMBER:  1719026

HOME AFFAIRS REFERENCE(S):           BCC2017/1738889

MEMBER:Joseph Lindsay

DATE:28 May 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 28 May 2019 at 2:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant changed to Vocational courses – enrolment ceased – financial hardship – family illness – decision under review affirmed          

LEGISLATION

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 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).

2. 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.

3. The applicant was invited under s.360 of the Act to appear before the Tribunal on 22 March 2019 at 2:00pm.

4. On the day of the hearing, 22 March 2019, the applicant attended the Tribunal and advised that he was no longer represented by his agent, Ms Deepty Arora. The applicant spoke English well and did not require the assistance of an interpreter.

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 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 since 29 September 2016. The Tribunal put these facts to the applicant, and the applicant agreed that he had not been enrolled in a registered course of study since 29 September 2016.

10. 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

11. 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

12. The Tribunal asked the applicant what were the circumstances that occurred at the time he was no longer enrolled in a registered course of study on 29 September 2016.

13. The applicant indicated that:

    a.he has not been able to cope with his father’s death when he was 16 years old and he has had depression since that incident;

    b.he came to Australia in 2014 after his mother had [surgery];

    c.he found it hard to cope with life in Pakistan;

    d.he was in Dubai for 16 years and was born in Dubai.

14. The applicant indicated that he left Dubai because that’s where his father was when he died, and because his father died the family had to move to Pakistan.

15. When the Tribunal asked the applicant if he had any medical evidence to indicate he was diagnosed with depression, he responded no. He also said he was not taking any medication or getting any counselling because he could not ‘afford anything’.

16. When the Tribunal spoke with the applicant about the financial guarantee he had provided that he could pay his course fees and pay to support himself, he indicated that he knew he had given the financial guarantee. He explained that he had to make a choice between his career and his mother’s health where his mother had [specified medical conditions] to the point where she could not work. He explained his mother was in Sialkot in Pakistan, but he did not know where exactly Sialkot was in Pakistan because he did not grow up there and had not spent much time in Pakistan. He explained his mother was not able to financially help him. He explained when he initially started studying he paid his fees but subsequently he was not able to afford to pay his fees.

17. When asked where he was studying, he said he did not know, he was not sure and he had forgot. He indicated that when he started studying it was at NMIT (formerly Northern Melbourne Institute of Technology but now called Melbourne Polytechnic). He indicated that in 2014 he started studying in civil engineering, which was an associate degree leading to a bachelor’s degree. After that, he indicated he enrolled in a cookery course but he did not finish it. He indicated he enrolled in the cookery course because the course was not that expensive but he acknowledged that it was not a higher education course.

18. The Tribunal then spoke to the applicant about his Provider Registration and International Student Management System (PRISMS) record, and the Tribunal put to the applicant that, like he said, he did enrol in a Certificate III and Certificate IV in Commercial Cookery, but the applicant responded he never did his cooking course and that he would telephone his course provider to say he could not attend the course because he was stressing a lot and had a migraine.

19. The Tribunal also put to the applicant he had enrolled in a Diploma of Hospitality course, to which he indicated he had been enrolled in that course. The Tribunal put to the applicant the Department (in the decision record) had indicated that the applicant had not been enrolled in that course from 29 September 2016, to which the applicant responded that he could not remember because he had short-term memory loss. The applicant again confirmed that he could not remember anything.

20. The Tribunal asked the applicant that if he had a memory problem, how was he going to study a course and pass it, let alone a higher education course, and he responded, ‘I can’t. I agree with you – I can’t.’

21. The Tribunal asked the applicant what he did when his course was cancelled. The applicant indicated that his lawyer got the email from the Department and that his lawyer did not tell him about the email from the Department.

22. The Tribunal then put to the applicant that he would have reasonably known at the time (he got the Notice of Intention to Consider Cancellation (NOICC) from the Department on 31 July 2017) that he was either studying or he was not, and that for many months the applicant had not been enrolled. The Tribunal then put to the applicant that for many months the applicant would reasonably have known he had not been studying. The applicant agreed that he had not been studying. He said that his lawyer was going to get the offer letter to get him enrolled in an automotive course.

23. The Tribunal confirmed with the applicant that this enrolment had happened where he had been enrolled in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. The Tribunal confirmed with the applicant that what he had said about his enrolments was reflected in his PRISMS record.

24. The applicant confirmed he never did any of the automotive courses.

25. When the Tribunal asked why he did not do the automotive courses, he said he did not know about it and his lawyer did not tell him about the courses. The applicant indicated his lawyer, Ms Arora, also did not even apply for a Bridging Visa E for him and he had to do this himself. The applicant complained that he had paid Ms Arora $4,000 to apply for the Bridging Visa E but had subsequently found out that he could have got the Bridging Visa E for free. The applicant complained that he only found out he did not have a Bridging Visa E when he was questioned by a police officer who told him he did not have a Bridging Visa E.

26. The applicant also complained that Ms Arora said she wanted more money to come and represent him at the Tribunal and because he would not pay her more money she would not represent him at the hearing.

27. He complained that his lawyers ‘screwed me – big time’.

28. The Tribunal put to the applicant that despite the issues he had with his lawyers, it was his responsibility as the visa holder to study and remain enrolled and finish his course, to which he agreed. The Tribunal put to the applicant that it was his responsibility to pay his course fees because he gave a financial guarantee, to which he agreed.

29. The applicant indicated that he was not able to make decisions by himself and that he needed to ask someone to help him.

30. The Tribunal asked the applicant how old he was and he responded he was 26 years old. The Tribunal put to the applicant that while there are some students who are younger, he was a bit older at 26 years old. The applicant indicated he had been through a lot of stress and had gone broke and he did not know what to do.

31. The Tribunal asked the applicant if he was broke now, to which he indicated he was completely broke and could not pay for anything let alone his course fees.

32. The applicant then said he had come to the Tribunal to apologise for wasting the Tribunal’s time.

33. The Tribunal said to the applicant that there was no need to apologise.

34. The applicant said he planned to study and make his future bright, but he had to choose between his mother and his study.

35. The Tribunal accepted that the applicant had given the Tribunal truthful evidence.

36. In considering the evidence above, the Tribunal makes the following findings.

37. The Tribunal accepts that the applicant’s father died when he was 16 years old.

38. The Tribunal accepts that the applicant’s father’s death had a lasting adverse emotional impact on the applicant. However, since there is no medical documentation in respect to the applicant’s claim he had depression, the Tribunal does not accept that the applicant has any medical diagnosis of depression and the Tribunal places low weight on the applicant’s claim in this respect.

39. The Tribunal accepts that the applicant is broke and cannot afford to pay his course fees even if he were to have a student visa. The Tribunal finds that the applicant acknowledged that he was required to provide a financial guarantee that he could pay his course fees whilst he was on a student visa. The Tribunal places high weight on these findings.

40. The Tribunal accepts that the applicant’s mother in Pakistan suffered ill health and had [surgery] in 2014. The Tribunal accepts that the applicant wanted to return to Pakistan to be with his mother but his mother wanted him to stay in Australia. The Tribunal places some weight on these findings.

41. The Tribunal accepts that the applicant experienced problems with his lawyer, Ms Arora. However, the Tribunal finds that the applicant, as the student visa holder, was responsible for his own compliance with his visa conditions. Accordingly, the Tribunal places low weight on the applicant’s claim in this respect.

42. The Tribunal finds that the applicant gave truthful information to the Tribunal in respect to his student enrolment history and that there is no information in the applicant’s PRISMS record that is adverse information in respect to the applicant.

43. The Tribunal accepts that the applicant did not complete the Certificate III in Commercial Cookery or Certificate IV in Commercial Cookery.

44. The Tribunal accepts that at the time he received the NOICC from the Department, he, with the assistance of his agent, enrolled in the Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology, but these enrolments were cancelled on 21 August 2017, a few days after he received the decision record from the Department dated 17 August 2017.

45. The Tribunal finds that the applicant has short-term memory loss and that, as a result, the likelihood of the applicant being able to complete a course, let alone a tertiary course, would be very low.

46. 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 from 29 September 2016 until just after the NOICC was issued on 31 July 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

47. 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

48. Based on the applicant’s evidence at the hearing, the Tribunal finds that there appears to have been a period of time that the applicant was unlawful and he did not hold a Bridging Visa E after his student visa was cancelled. However, this situation appears to have been rectified where the applicant took action to get a Bridging Visa E and again become lawful. The Tribunal accepts that the difficulties the applicant appears to have had with his agent may have contributed to this situation and that the applicant does not appear to have had any intention to become unlawful. Accordingly, the Tribunal gives low weight in regard to this matter in respect to the applicant’s compliance with his visa conditions.

49. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

50. In response to this issue, the applicant indicated that his mother rents a house in Pakistan, but he is not close to his extended family. He indicated his future in Pakistan is nothing. He said he felt as if he was a stranger because he had only spent five years in Pakistan.

51. The Tribunal asked the applicant what he thought he would study if he got his student visa, but in response he said he indicated he would go back to Pakistan.

52. The Tribunal put to the applicant that at any time he could have got on a plane and returned to Pakistan. He explained he did not want to do that because he would face the ‘banning issue’. He explained that he did not want a ban placed on him because he might want to come back to Australia to do something else.

53. In addition, the applicant indicated that he had been in London for a year and he wanted to go back to London. He indicated that he had three uncles who were in London and who were UK citizens and so he wanted to go back to London.

54. The applicant said he had no family in Australia except for his twin brother, who also was a student but he is now married and was in the process of applying for permanent residency.

55. The Tribunal indicated to the applicant that it could not speak for or speculate in relation to the UK authorities.

56. The Tribunal asked the applicant why he did not go back to Pakistan before his visa was cancelled. The applicant responded that he actually wanted to go back to Pakistan to help his mother but his mother wanted him to stay in Australia. He then said he liked being in Australia and Australia was a country he wanted to live in. He said he did not like the random crime and the police corruption in Pakistan.

57. The applicant also indicated that he wanted to be able to help his mother in Pakistan.

58. In respect to the above considerations, the Tribunal accepts that the applicant may face some hardship in the sense that he would face a 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 gives some weight to these findings. However, the Tribunal will not and indeed cannot speak for or speculate about how the immigration authorities of any other state, including the United Kingdom, may or may not deal with or process a visa application from the applicant. Accordingly, the Tribunal gives low weight to the applicant’s claim of hardship in this respect.

59. The Tribunal gives some weight to the applicant’s concerns about his future prospects in Pakistan.

60. 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

61. 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

62. 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

63. In respect to the legal consequences of the cancellation of his student visa, this issue has been largely dealt with above during the discussion about any hardship the applicant may experience should his student visa be cancelled.

64. The Tribunal finds that the applicant is very much aware of the legal consequences of the cancellation of his student visa. He was very much aware of the need to have a Bridging Visa E and the issues that occurred when he was detained by the police when he was unlawful and did not hold a Bridging Visa E.

65. 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.

1. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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 chose not to return to Pakistan.

2. 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.

3. 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

4. The Tribunal asked the applicant whether he had any fear in going back to Pakistan. The applicant claimed he did have fear of his uncle. He claimed that his grandfather built a property but his grandfather passed away. He indicated that before his own father passed away, his father asked him not to ‘do anything’ to the house. He said his father built the property for his grandfather. He said his uncle threatened to kill him (the applicant) and his brother because his uncle wants his mother’s signature to sell the property, but his mother would not sign the document to sell the property.

5. When asked if he thought it was a real threat, the applicant indicated that he perceived the threat to be real. He said the threat was made to his mother. He said he did not want to be a part of it. He said he had never been there and never grew up there (in Pakistan).

6. When the Tribunal asked the applicant if he was claiming protection, he said he was not claiming protection and did not want a protection visa.

7. In consideration of the above, the Tribunal finds that the circumstances of the threat are vague, the threat was not made directly to the applicant and the applicant has not ever been directly harmed or threatened by his nameless uncle. The Tribunal finds that the applicant expressly stated that he was not applying for protection and he did not want a protection visa. Accordingly, the Tribunal does not accept that there is a real risk of serious harm or significant harm in respect to the applicant if he returned to Pakistan in the reasonably foreseeable future.

8. 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

9. When asked if there were any further relevant matters, the applicant said he just wanted Immigration not to put a bad name on him or not ban him or stop him from applying for visas to other countries. These matters have been dealt with above.

10. There are no other relevant matters before the Tribunal.

    Conclusion

11. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 29 May 2014.

12. The Tribunal finds that the applicant was not enrolled in a registered course of study from 29 September 2016 until just after the NOICC was issued on 31 July 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

13. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

15. 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.