Zaman (Migration)

[2019] AATA 3591

Zaman (Migration) [2019] AATA 3591 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darwesh Zaman

CASE NUMBER:  1820074

HOME AFFAIRS REFERENCE(S):          BCC2018/172691

MEMBER:D. Triaca

DATE:30 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 July 2019 at 11:56am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not enrolled in a registered course of study – breached condition 8202  – mixed anxiety and depression – didn’t take any action to ensure he did not breach condition 8202 – decision under review affirmed

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LEGISLATION
Migration Act 1958, ss 48, 116, 189
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that applicant had not been enrolled in a registered course of study from 25 May 2017. 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 appeared before the Tribunal on 27 May 2019 to give evidence and present arguments.  

4. 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

5. 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?

6. 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).

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

8. The applicant‘s visa was granted on 16 December 2016 with an original expiry date of 30 August 2018 providing for approximately 18 months during which the applicant would be permitted to reside in Australia for the purposes of full time study.

9. The visa was granted on the basis that the applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered course of study for the duration of his time in Australia. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

10. Condition 8202(2)(a) of the applicant’s visa required that the applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 25 May 2017 to 3 July 2018 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to 13 months during which the applicant was in continuous breach of his visa.

11. The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (PRISMS). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth).

12. On 21 February 2018, the Department of Immigration and Border Protection wrote to the applicant, notifying him of its intention to consider cancelling his student visa (the NOICC). That notice set out particulars of the alleged breach by the applicant of condition 8202. The applicant was invited to comment on these allegations before the Department moved to cancel his visa.

13. The applicant provided a written response through the applicant’s migration agent. (NOICC Response). Whilst the applicant did not confirm the accuracy of the date of cancellation of his CoE in his response to the NOICC, in his oral evidence before the Tribunal the applicant conceded that his enrolment was cancelled by his education provider on 25 May 2017 and he had not enrolled in a registered course of study after that date.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the Tribunal is satisfied that the applicant was in breach of condition 8202(2)(a) and finds that the applicant was in breach of and has not complied with the relevant visa condition from 25 May 2017.

    Consideration of Discretion to Cancel the Visa.

15. 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’.

16. In his evidence before the Tribunal and his NOICC response, the applicant raised a number of issues that he says contributed to his breach of the visa conditions. His evidence is summarised as follows:

17. He arrived in Australia in 2013 and commenced studying English. He then enrolled in a Bachelor of Business Accounting. He says he then moved to the Australian College of Trade to study a Diploma of Management which he completed in 2015. He then commenced studying a Bachelor of Business at Stotts College.

18. He says his life went “upside down” in 2016. His Wife, who resided in Pakistan, suffered some health problems with Kidney Stones. He returned home to Pakistan in January 2017 to support his wife. He provided the Tribunal with a medical certificate from THQ Hospital dated 11 January 2017 in relation to his wife’s medical condition and a further medical certificate from the Pioneer Ultrasound Clinic dated 17 February 2017 for an abdominal ultrasound.  Whilst he was in Pakistan he suffered a shoulder injury playing cricket. He provided the Tribunal with a copy of an X-Ray.

19. He says that he sought to defer his studies in January 2017. He made an oral request and he followed this up via email. He provided the Tribunal with a copy of an email to the College seeking a deferral on 24 January 2017 and provided a copy of a medical certificate and also a copy of his plane ticket. He provided the Tribunal with a copy of an email dated 1 March 2017 to the College, seeking to defer his studies for First Semester on account of his Wife’s medical condition and his shoulder injury. He says he received no response from the College.

20. He returned to Australia in April 2017. He says the University had not deferred his studies. He then fell into a dispute with the College in relation to fees. He says the college sought $7,000 in fees and he “paid half”. However he did not provide any documentation in relation to the payment of fees.

21. He says in April 2017 he returned to study for “2 weeks” but he says he found he could not continue studying due to his anxiety surrounding the problems with his wife.

22. The College cancelled the CoE in May 2017. He claims that he was not advised of this by the college. However, he says they may have informed him via the college “Moodel” or intranet but he did not recall receiving notification. He conceded that from 25 May 2017, he resided in Australia and did not study but was not enrolled in any registered course.

23. He says that he suffered from Depression. He provided the Tribunal with a Medical Certificate from Health Promotion Welfare Society Iftikhar Psychiatric Hospital in Pakistan dated 28 February 2018. The Certificate states relevantly, “This is to certify that Mr. Darwesh Zaman was under my treatment for Depression Illness and his reports and daily activities produced symptoms of deep depression and anxiety for which he was attended regular sessions with a psychologist between February 2017 and April 2017.“  He says he went to this Dr in Pakistan about 5 times. He provided the Tribunal with a copy of a prescription for OsteVit-D & Calcium tablets dated 20 October 2017 for a vitamin D deficiency and a prescription for Livostin Nasal Spray and Zyrtec dated 2 November 2017. Apparently this medication related to the applicant’s mental health issues.

24. The applicant also provided the Tribunal with an assessment for a Mental Health Care Plan dated 20 October 2017, referring to mixed anxiety and depression. The mental health care plan was provided by Allied Health Services in Hoppers Crossing. He says he went to the GP in Sunshine about 5 -6 times for a period of about 2.5 months. He is no longer on any medication.

25. He states that his child passed away in Pakistan in October 2017. In his NOICC response, he states that the death of his child left him devastated and had to depart immediately and he could not cope with his studies. However, in his evidence before the Tribunal, he stated that this was incorrect and he did not return to Pakistan following the passing of his child.

26. The Tribunal has considered all of the applicant’s evidence in relation to his circumstances in 2017 and his documentation provided to the Tribunal. The difficulty for the applicant is that on any view, he was in breach of the conditions of his student visa for an extended period of time, and it is not apparent that he took any meaningful steps to rectify the situation within a reasonable time.

27. The applicant’s enrolment at Stotts College was cancelled on 25 May 2017. The Department cancelled his visa on 3 July 2018. This is a period of approximately 13 months.

28. By way of explanation of his circumstances that led to the cancellation of his CoE the applicant raises the following issues for the Tribunal to consider. His argument is that these reasons, individually and collectively were causative factors in the breach of his student visa conditions:

    (a)His dealings with Stotts College, its failure to grant him a deferment of his studies and a subsequent dispute over fees in April and May 2017;

    (b)His return to Pakistan in January 2017 on account of his wife’s health and stress in relation to his concern for her health;

    (c)A shoulder injury he suffered whilst in Pakistan in February 2017;

    (d)His own mental health issues.

29. Having regard to each of these issues individually and in their totality, the Tribunal does not consider the evidence supports the proposition that the applicant’s enrolment was cancelled and remained cancelled for 13 months for reasons outside his control, nor does it support a claim that the applicant was unable to take any steps to remedy the situation once he became aware of the cancellation of his CoE.

30. The Tribunal considers the evidence in relation to each of the reasons advanced by the applicant as follows:

    Applicant’s Return to Pakistan & Wife’s Illness.

31. The Tribunal accepts that the applicant’s wife was ill in early 2017 as evidenced by the medical certificates provided. However, there evidence does not suggest that her illness was of a life threatening or serious nature or that she was ill for an extended period of time. The applicant provided 2 medical certificates in respect of her illness in January 2017 and February 2017. The certificate from January 2017 describes her condition as “satisfactory.” She is advised bed rest for three months and regular check-ups. The second Certificate evidencing an abdominal ultrasound dated 17 February 2017 does not appear to suggest her condition had worsened and there is no further evidence in relation to her illness.

32. The applicant’s evidence is that he travelled to Pakistan in January 2017. He first went to Dubai for two weeks. He then arrived in Pakistan. By April 2017, the applicant felt able to leave her to return to Australia. Accordingly, the Tribunal does not consider the applicant’s wife’s illness operated so as to impede the applicant’s studies for a long period of time.

33. The Tribunal does not consider the applicant’s return to Pakistan resulted in the cancellation of his enrolment. There is no evidence that supports that conclusion. The applicant’s wife’s illness created a situation in which he naturally felt concern. He felt the need to return home for a period of time. He was able to do so, and then return to Australia whilst maintaining his CoE.

    The applicant’s shoulder injury.

34. Whilst the Tribunal accepts the applicant suffered a shoulder injury in February 2017 whilst in Pakistan, it does not appear that the injury was of such a nature that it would have prevented him from studying for a long period of time.

    The applicant’s dealings with Stotts College.

35. The applicant returned to Australia in April 2017. He says he fell into a dispute with Stott’s College in relation to the deferral of his study. He has provided evidence of his attempts to defer his studies in January and March 2017. The Tribunal accepts this evidence. However, it also considers that in circumstances in which the college did not agree to defer the enrolment, the applicant had the opportunity to review that decision if it was incorrect. There is no evidence that the applicant sought to bring his personal issues to the attention of the relevant authorities.

36. It is also relevant that the applicant travelled to Dubai and Pakistan in January 2017 without any formal confirmation from the College in relation to his request to defer his studies. Ultimately it was his personal choice to travel without being certain of any decision of the College regarding deferral.

37. The applicant’s evidence is that upon his return to Australia, he attempted to resolve the dispute over fees by paying half. He intended to pay further fees in relation to the commencement of the next semester. He did not do so. In the absence of any documentary evidence in relation to the dispute over fees, the Tribunal considers that it is likely that the applicant’s CoE was cancelled in May 2017 due to non-payment of fees and it would have been open to resolve the issue with Stotts College by making a payment of fees. He did not do so and instead elected to sever his relationship with the College.

    The applicant’s knowledge of the cancellation of the CoE.

38. The applicant states he was not aware his CoE had been cancelled in May 2017. He says this may be because he was unable to access the internal email system at Stotts on account of non-payment of fees.

39. The Tribunal considers that on any view, the applicant was well aware that from May 2017 until 21 February 2018 (when the NOICC was sent), the applicant knew he was living in Australia on a student visa and he was not studying and from 21 February 2018 he certainly knew that he was living in Australia and was not studying or enrolled to study and remained the situation until the visa was cancelled on 3 July 2018.

    The applicant’s mental health issues.

40. The Tribunal has regard to the fact that the applicant has experienced some difficulties with his mental health whilst in Australia and also in Pakistan. The Tribunal accepts the evidence of the medical certificates provided by the applicant. He states he saw a GP in Australia 5 or 6 times in respect of mental health issues around October 2017. He has provided evidence that he was diagnosed with mixed anxiety and depression in October 2017 and a Mental Health plan was prepared for him in October 2017 and he was prescribed medication around that time. The Tribunal also accepts his evidence that around this time he suffered the loss of a child in Pakistan and, whilst there is no specific evidence on this point, the Tribunal considers it reasonable to assume he had this had an impact on his mental health. The applicant also states he saw a Psychologist whilst in Pakistan between February and April 2017 and provided a medical certificate to that effect.

41. The applicant states his agent wrongly suggested the death of his child had caused him to return to Pakistan in October 2017. He says this is incorrect. He did not return to Pakistan at this time.

42. The difficulty for the applicant’s case is that the evidence falls short of establishing that the applicant’s mental health issues created a situation where he was unable to take any meaningful steps to return to study for a 13 month period. There is evidence that the applicant suffered mental health issues for certain short periods firstly in whilst in Pakistan. Secondly in Australia around October 2017. The Tribunal does not consider that the applicant’s failure to adhere to his visa conditions cannot be explained on the basis of a chronic mental health condition.

43. Having regard to the matters advanced by the applicant, it seems essentially his argument is that a variety of life stressors, emotional and financial, in their combined effect had such an impact on him that he was prevented from continuing to study for an extended period of time.

44. The Tribunal accepts he was faced with difficulties he says he has had to deal with. However, many students suffer difficulties during their stay in Australia, noting that they are generally far from home and without their support networks. However, they are also burdened with the need to comply with the strict visa conditions attaching to their visas.

    Hardship

45. When asked, the applicant stated he would suffer hardship if his visa was cancelled. He says he will not have enough education and he would suffer if he could not complete his education in Australia. The Tribunal accepts he has invested time and money pursuing an Australian education and he will be disappointed if his visa is cancelled. However, this is the intended consequences of the legislation and the Tribunal gives minimal weight to any claims of hardship.

46. The Tribunal has given consideration to the applicant’s express desire to remain in Australia to complete his education. The Tribunal accepts his evidence that he values the opportunity to obtain an Australian qualification. However, the desire to remain in Australia must be tempered by the extent of his non-compliance with the conditions of the visa. It was a student visa that obliged him to prioritise studying for the entire time he was here. The Tribunal‘s view is that the evidence does not satisfactorily explain his non-compliance with that fundamental condition for a period of 13 months.

47. The Tribunal has given consideration to the applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the applicant’s visa is cancelled.

48. The Tribunal notes that if the visa is cancelled, the applicant will become an unlawful non-citizen and liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion to be met. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of the visa conditions.

49. The Tribunal notes the applicant may be eligible for a bridging visa to allow him to make arrangements for him to depart Australia. He advanced no reason he cannot return to Pakistan, in fact his evidence was that if the visa remained cancelled he would return.

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

   Other matters.

2. The applicant’s evidence is that he has worked in Australia as an Uber Driver. He states that he has not worked or studied since October 2017 when his CoE was cancelled. His evidence in relation to how he finances his stay in Australia was confusing. He says he has been loaned money from family members abroad and he has then used this money to support his wife and 2 children in Pakistan. However, he claims that his family would not continue to financially support him if he returned to Pakistan.

3. In all the circumstances, the Tribunal is satisfied that the applicant’s visa ought to be cancelled. 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 Class TU visa.

   D. Triaca
   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.