Waheed (Migration)

[2020] AATA 4079

Waheed (Migration) [2020] AATA 4079 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chaudhary Ehtasham Waheed

CASE NUMBER:  2003319

DIBP REFERENCE(S):  BCC2019/3262068

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 July 2020 at 11:01 am (VIC time)

DATE OF WRITTEN RECORD:                26 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 July 2020 at 10:26am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) enrolment in a higher level course ceased – limited academic progress – applicant changed to Vocational course – family bereavements – bogus document with the visa application – decision under review affirmed        

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 February 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision for file number 2003319 for Mr Chaudhary Ehtasham Waheed. This is an application for review of a decision dated 13 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116 of the Migration Act.

4. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(b).  The applicant was not enrolled in a course at a level the same as or higher than the course for which he was granted the visa.  The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it.

5. The issue in the present case is whether that ground for cancellation is made out and if so, whether the visa should be cancelled.

6. The applicant appeared before the tribunal today by telephone due to the COVID-19 restrictions to give evidence and present arguments.  An interpreter in the English and Urdu languages was utilised in the hearing.  The applicant was represented in relation to the review by his registered migration agent although the agent did not participate in the hearing. 

7. The tribunal has had regard to the applicant’s evidence at the hearing, the documents he has provided to the tribunal and to the Department.  The applicant provided the tribunal the following documents.  A copy of the delegate’s decision, details of his health insurance coverage, a copy of his passport, a letter dated 1 November 2019 from a psychologist, Mr Greg Philpot, a payslip for the period 28 April to 3 November 2019 and the death certificate for his grandfather and grandmother. 

8. In the Department’s file the tribunal has had regard to the documents provided by the applicant including a statement which is undated addressing the notice of intention to cancel his visa, the same letter from Mr Greg Philpot and two letters from Australis Institute of Technology and Education relating to his unsatisfactory progress in the certificate III in commercial cookery course.

9. As already noted, the issue in the present case is whether the applicant as the holder of a student visa has breached condition 8202(2)(b). If the applicant has breached that condition under section 116 of the Act, the visa may be cancelled.

10. Subclause 8202(2)(b) requires a visa holder to maintain enrolment in a registered course that once completed will provide the same level or higher level than the registered course in relation to which they were granted the visa. 

11. At the hearing the applicant accepted that he has breached condition 8202.  He confirmed that he was enrolled in a Master of Business course at Western Sydney University and this course was to commence on 4 January 2019.  His enrolment in this course was cancelled by the university on 14 May 2019.  He never commenced the course.

12. The applicant went onto enrol in a certificate III in commercial cookery.  This course commenced on 8 July 2019 and his enrolment ended on 5 July 2020.  He says he has completed more than half of this course as he would like to complete it.

13. On the evidence before the tribunal, the applicant has not maintained enrolment at a Master’s course level or higher.  Accordingly the applicant has not complied with condition 8202(2)(b).

14. Having found that the applicant has not complied with the 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 had regard to the circumstances of this case including matters raised by the applicant and the matters in the Department’s procedures advice manual known as PAM3, general visa cancellation powers. 

15. In relation to the purpose of the applicant’s travel and stay to Australia and whether he has a compelling need to remain in Australia, the applicant is a Pakistani man.  He arrived in Australia on 29 November 2018 for the purpose of completing a Master of Business Administration course. 

16. He says he wanted to do a commercial cookery course but he was not told he would be in breach of his visa by enrolling in the certificate III course.  He says that he now wants to do the Masters course, however he is not enrolled in this course.  He says he will do the Masters course after he completes the certificate III in commercial cookery. 

17. There is no evidence to confirm that the applicant is enrolled in a Masters course and indeed that is not the applicant’s evidence.  However the tribunal does not accept the applicant’s evidence that he intends on enrolling in the Masters course as there is simply no evidence to indicate that he will follow through on this intention.  It also contradicts the evidence he gave in response to the notice of intention to cancel his visa when he stated that it is his dream to have a chain of fine dining restaurants throughout Pakistan and that he would like to carry his grandfather’s legacy forward in doing so.

18. While there is no evidence presented at the hearing nor in the Department’s file that the applicant came to Australia for any purpose other than to study, he never commenced the course that he intended to complete and nor is he studying anywhere near the level for which he was granted the visa.  Accordingly the tribunal gives this a small amount of weight in favour of cancelling the visa. 

19. The applicant gave evidence about the grounds in which the cancellation arose.  He did not commence the Master of Business Administration course because his grandparents had recently passed away and this left him feeling depressed.  He said in his written statement he was visiting doctors and taking medication for depression and hypertension.  However the only medical evidence that was presented to both the Department and to the tribunal was a letter from a psychologist, Mr Greg Philpot.  This letter is dated 1 November 2019. 

20. At the hearing the applicant confirmed that the first time he saw Mr Philpot was 1 November 2019.  He said he had not seen any other medical practitioner prior to 1 November 2019.

21. While the tribunal accepts that the death of his grandparents within four months of each other would have had an upsetting effect on the applicant, the applicant was not in fact seeing doctors and taking medication for depression and hypertension contrary to what he said in his statement to the Department. 

22. The tribunal also has taken into account the letters of intention to report in relation to his unsatisfactory course progress for the certificate III in commercial cookery.

23. The applicant said at the hearing that he was not attending regularly because of the COVID-19 situation.  However he also said that he was not attending class after his visa was cancelled.  It is noted that the unsatisfactory progress letters were sent to the applicant in December 2019.  Accordingly the COVID-19 situation and the cancellation of his visa both occurring in early 2020 could not possibly have had an impact on his studies in the certificate III course in 2019.

24. The tribunal has concerns that the applicant is not a witness of truth.  This is because of his evidence about attending doctors when this was contradicted by his evidence at the hearing.  The tribunal also does not accept his evidence about the unsatisfactory progress in the certificate III course with him blaming the COVID-19 situation and the cancellation of his visa at a time when neither of these two things came into effect.

25. Furthermore the tribunal takes into notice the reference in the delegate’s decision to the applicant providing a bogus document in relation to his application for his student visa at the vocational education and training sector level. 

26. The applicant says that when he came to Australia he did not know the rules and regulations and that he was dependant on his education agent.  He said he did not intentionally breach the condition of his visa.  He says that this has all happened because of the wrong advice from his agent.  The tribunal considers that it is the responsibility of an applicant to know and understand the conditions that are attached to his visa. 

27. In light of these circumstances, the tribunal gives the significant weight in favour of cancelling the visa. 

28. Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  However the applicant has been in breach of his visa for well over a year now as he has not been enrolled in a Masters degree or higher course in all of the time that he has been in Australia.

29. Accordingly the tribunal gives this some small weight in favour of cancelling the visa.  When asked what hardship what might be caused if his visa were to be cancelled, the applicant said that he would suffer psychological and mental disturbance.  He said his parents would also be disturbed.

30. In his written statement he said that hardship may be caused if has to leave his studies in-between and will return without having the proper profile in his hands that will ensure a decent job.  His parents have high aspirations for him and have spent a lot of money thinking that he will get a big position in Pakistan after completing his studies. 

31. The tribunal accepts that the applicant will suffer some financial, emotional and mental hardship if he has to return to his home country without completing his studies.  The tribunal gives this some weight against cancelling the visa.

32. Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa, nor is there any evidence to suggest that the applicant has not engaged appropriately with the Department.  Accordingly, the tribunal gives this some weight against cancelling the visa.

33. Consequential cancellations under section 140 are not applicable in this case.  As to any mandatory legal consequences, the applicant gave no evidence about this nor were there any submissions made by or on behalf of him.

34. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa.  While the applicant could make another student visa application offshore, he would not be permitted to do so onshore as a result of the visa cancellation.

35. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention.  The applicant could also be precluded from being granted a further visa for a period of three years as a result of public interest criterion 4013.

36. The tribunal is satisfied that those consequences are intended lawful consequences of the legislation and do not mean that the visa should not be cancelled.

37. The tribunal gives no weight against cancelling the visa under this condition.  There is nothing before the tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligation.  Accordingly the tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.

38. The applicant did not give evidence about any other matter that would be relevant to the review of the cancellation of his student visa.

39. Considering the circumstances as a whole, the tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the tribunal finds that the visa should be cancelled. 

40. This decision is made at 11:00 am on 6 July 2020.  You will receive a copy of this decision by email in due course, however I note that you do have a representative, Mr Peru, so the decision will be sent to him as he is your registered representative.

    DECISION

41. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member