Waqar (Migration)

[2019] AATA 5972

Waqar (Migration) [2019] AATA 5972 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasim Waqar

CASE NUMBER:  1719194

HOME AFFAIRS REFERENCE(S):          BCC2017/1982633

MEMBER:Mark Bishop

DATE:8 October2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – family illness – limited academic progress – applicant changed to vocational course – decision under review affirmed  

LEGISLATION

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

CASES

MIAC v Chanman You (2008) FCA 241         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 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 applicant appeared before the Tribunal on 8 October 2019.  

3. On 19 September 2019 the applicant made a request to the Tribunal for access to documents under s.362A of the Act. On 20 September 2019 the Tribunal provided the documents to the applicant. The documents contained a copy of the decision record and the applicant’s PRISMS record.

4. On 25 September 2019 the Tribunal wrote to the applicant and request he provide a copy of the decision record provided to the Department dated 4 August 2017 within 7 days to the Tribunal.  The applicant did provide a copy of the decision record to the Tribunal. In a submission to the Tribunal the applicant submitted the principle contained in MIAC v Chanman You (2008) FCA 241 does not apply. In the written submission the applicant did not outline what principle did not apply. In later discussion with the Tribunal the applicant advised he sought re-enrolment in a registered coursed in August 2017 and to the extent the delegate made a finding he did not seek re-enrolment or was not re-enrolled in a registered course in August 2017 the delegate made a factual error. The Tribunal accepts this advice.

5. MIAC v Chanman is significant as authority that information given to the Tribunal, whatever the purpose in giving the information, whether “volunteered” by an applicant in support of the review application, included by attaching the delegate’s decision to the review application, or requested by the Tribunal, comes within the exception in s.359A)4)(b) [s.424A(3)(b)]. This decision is binding on the Tribunal.

6. The Tribunal notes the decision record is not binding on the Tribunal. This is a review application. It is a de novo hearing and decision. The Tribunal brings an independent mind to its deliberations. 

7. 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

8. 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?

9. 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).

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

11. The applicant was notified of the intention to consider cancellation (NOICC) and the notice invited the applicant to respond in writing. The applicant did respond. The applicant responded on 14 August 2017 and advised he did not agree there were reasons for cancellation. He also provided reasons why the visa should not be cancelled. The applicant advised in the NOICC.  He agreed there was non-compliance. The applicant provided a statement as follows:

    ·He requested reconsideration of the decision to cancel his visa;

    ·He came to Australia on a student visa and completed courses in English and Accounting;

    ·He was due to conclude a course in February. He did not complete the course until the end of March because of outstanding assignments;

    ·His cousin broke his leg and he stayed at home with his cousin. In May his grandmother became ill. He felt depressed. He could not focus on his studies;

    ·His grandmother passed away in July. He was disheartened by his circumstances;

    ·His parents will be devastated if he returns home with a cancelled visa. Future classes commence 28 August 2017.

12. He provided appropriate supporting documentation.

13. On the day prior to the hearing the applicant provided a Statement of Purpose that outlined his background in his home country, his coming to Australia to study Business pursuant to a 573 visa, his problems in the Australian education system,  his decision to change enrolment into the VET sector, issues relating to an injury suffered by his cousin, a family death, his dissatisfaction with his education provider in his later study in a Bachelor of Accounting, his minimal academic progress in the period August 2017 until present, his future plans of returning to his home country, his inability to face family and friends without completing his Bachelor degree, financial considerations in Australia and his desire to reunite with family in his home country. He provided appropriate supporting documentation.

14. The delegate stated that “based on evidence available … in PRISMS the applicant was not enrolled in a registered course of study from 6 February 2017…” Accordingly he did not meet the requirements of condition 8202(2)(a).

15. Having regard to the findings of the delegate as outlined in paragraph 14 above, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 6 February 2017. The date of the decision record was 22 August 2017. The applicant provided a letter “Academic Progress Statement” dated 7 May 2019 from Universal Business School that showed his commencement date in a Bachelor of Accounting was 28 August 2017. The Tribunal accepts that the applicant sought re-enrolment in a Bachelor of Accounting in August 2017. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 6 February 2017 and re-enrolled in a registered course in August 2017. Accordingly, the applicant has not complied with condition 8202(2).

17. 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

18. 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 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 Tribunal inquired of the applicant why he came to Australia. The applicant advised he came to Australia to study. He wished to study Accounting in Australia. He first came to Australia in June 2014.

20. The Tribunal asked the applicant to explain his compelling need to remain in Australia. The applicant advised he completed a Certificate IV in Accounting February 2016 and Diploma of Accounting in March 2017. His cousin was injured in April 2017. His cousin broke his legs. He provided caring services to his cousin. He was not enrolled in a registered course from February 2017. He re-enrolled in a Bachelor of Business (Accounting) in August 2017. He completed 5 subjects in the two year period August 2017 until October 2019. He advised the Tribunal he had mental stress. The applicant advised he did not have any psychiatric, psychological medical or other professional reports that addressed his period of stress. He needs to complete a further 8 subjects to finish his degree.

21. The applicant was granted a subclass TU573 visa for the purpose of maintaining being enrolled in a registered curse of study. ·

22. The applicant advised provided in his written response to the NOICC that the passing away of his grandmother and the accident that happened to his cousin had contributed to his failure to maintain his enrolment in registered course of study. The applicant advised that he was not able to concentrate on his studies as he was helping his cousin to go to the hospital for treatment of a broken leg. The applicant claimed that these sad events he experienced led to a period of mental anguish which affected his studies.

23. In evidence to the Tribunal the applicant advised his study progress from February 2017 until the present time as completing five subjects and provided a copy of his academic transcript dated 7 May 2019 that showed he enrolled in 9 subjects in the period December 2017 until December 2018, completed five subjects with passing grades and failed a further four subjects. This document did not show enrolment and completion of any subjects post December 2018. The applicant provided a copy of a Confirmation of Enrolment (COE) in a Bachelor of Accounting created 24 May 2019 that showed enrolment with a course commencement date of 8 July 2019.

24. The Tribunal provided adverse information to the applicant in the form of his PRISMS record. The Tribunal asked the applicant to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained the information was taken from the PRISMS record of the applicant. The Tribunal included particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Presiding Member to affirm the decision of the Department in his case and affirm the decision of the delegate. The Tribunal asked the applicant if he sought additional time to respond to the information. After consultation with his representative the applicant advised he did not seek additional time. The adverse information related to the cancellation of a COE number 903D9011 in a Bachelor of Accounting. The applicant advised the Tribunal he was studying in the first half of 2019. The Tribunal accepts this advice. The Tribunal does not make any adverse findings against the applicant arising from information contained in his PRISMS record.

25. The purpose of the visa is also to allow the applicant to be enrolled in a registered course of study upon completion of a course or after cessation of studies or non-commencement of studies and non-payment of fees.

26. That purpose ended when the applicant failed to maintain his enrolment after he finished a Diploma of Accounting course on 5 February 2017 at ALIF Australia Pty Ltd trading as Australis Institute ·of Technology and Education.

27. After 5 February 2017 the applicant chose to remain in Australia and not seek enrolment in a registered course until August 2017 as required by his TU573 student visa which was not the purpose of his visa.

28. The Tribunal gives little weight to this consideration in the applicant’s favour.

    The extent of compliance with visa conditions

29. The applicant did not comply with the condition attached to his visa because he was not enrolled in a registered course of study from 6 February 2017. Therefore, the Tribunal gives little weight to this consideration in the applicant’s favour.

30. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal 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)

31. The Tribunal inquired of the applicant if he would suffer any hardship if his student visa was cancelled. The applicant advised his father and wife had expectations of his passing his degree in Australia. His family in Pakistan wished him to return to Pakistan and take up his role in the family company.

32. The applicant may be caused some financial difficulties if his visa is cancelled. There is no evidence that any family members in Australia will be negatively impacted by the cancellation of the visa.

33. As there may be some hardship to the applicant as a result of the cancellation the Tribunal gives this consideration a little weight in favour of the applicant.

34. The applicant advised the Department on 14 August 2017 in his written response to the NOICC that “my parents have high exception (sic) of me when I return back after completion of my studies and if they hear the news of my visa cancellation they will be devastated because they have been supporting and financing all my equational expenses so far and with this cancellation all my hard work and their dedication for my studies will be laid to ruins”

35. In evidence the applicant advised the Tribunal he completed an English course in 2014 and had completed two further VET courses in Accounting.

36. The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to Pakistan after five years without his academic progress in Australia falling short of completion of a Bachelor degree. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of his parent’s generosity and consequent opportunity in Australia.  However the personal and family discomfort or embarrassment is a necessary consequence of the applicant’s continuing failure to adhere to conditions attached to his visa and engage in study in the first half of 2017 and minimal academic progress thereafter.  The Tribunal is unable to conclude there is any compelling need to remain in Australia.

    Circumstances in which ground of cancellation arose

37. The circumstances for cancellation arose when the applicant failed to maintain his enrolment in a registered course after 6 February 2017.

38. Visa holders are presumed to be aware of the visa conditions that apply to their visa, know what the visa conditions mean, comply with the visa conditions during their prescribed period of stay, and be aware of the consequences if they fail to comply with any visa condition.

39. The Tribunal considers it reasonable to expect that the applicant was aware when he was granted the TU573 student visa, that condition 8202{2){a) was attached which includes a provision that he must maintain being enrolled in a registered course of study while he holds the TU573 student visa. The Tribunal considers that he would have been fully aware that he did not comply with his visa condition when he failed to maintain his enrolment after he finished a Diploma of Accounting on 5 February 2017 at ALIF Australia Pty Ltd trading as Australis Institute of Technology and Education.

40. While the Tribunal has considered the applicant’s submissions concerning the passing away of his grandmother and the period of time helping out his cousin as contributory factors to his failure to maintain· enrolment in a registered course of study, he could have approached his education provider to discuss and try to rectify his problems in his studies. The education provider has a range of counselling and assistance programs available to all students to assist them with issues that may arise during their study, including personal problems, health problems, financial hardships, course progress and course attendance requirements issues. The applicant did not provide any evidence he sought out such services. In evidence the applicant advised the Tribunal he never consulted with the Department.

41. The applicant outlined his academic progress in Australia after August 2017 as completion of five subjects.

42. The applicant chose to remain in Australia after 6 February 2017 and until August 2017 without seeking enrolment in a registered course. He advised the Tribunal he sought re-enrolment in a registered course in August 2017.

43. The Tribunal gives minimal weight to the submissions of the applicant. The Tribunal gives little weight to the circumstances of cancellation in favour of the applicant.

    Past and present behaviour of the visa holder towards the department

44. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or 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 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

45. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

46. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

47. There is nothing before the Tribunal to indicate there are international obligations to consider.

48. Any other relevant matters

49. The applicant advised the Tribunal he made a mistake and wished to finish his degree and return to his home country.

50. The Migration Agent (MA) for the applicant advised the Tribunal the applicant had completed two VET courses after 2014. His period of non-enrolment was minimal. He substantially complied with visa conditions. He had not breached any other visa conditions. He re-enrolled in a registered course shortly after receiving the NOICC. In this period he was looking after his cousin. He always intended to adhere to visa conditions. His study in Australia has been only in the field of Accounting. He has only two semesters to complete his degree. Since the date of visa cancellation he has been unable to leave Australia. He has not been able to see his wife and family in Pakistan. His immediate family all live in Pakistan. His aim is to return to Pakistan. The MA submitted the applicant was a genuine student per se. The Tribunal has given consideration to these submissions in its consideration of the discretionary factors as outlined above.

1. The Tribunal is not aware of any other relevant matters.

2. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach of almost six months is significant in the context of a student’s study period

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

   DECISION

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

   Mark Bishop       
   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.