Zia (Migration)

[2023] AATA 4719

Zia (Migration) [2023] AATA 4719 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Adil Zia

REPRESENTATIVE:  Mrs Parminder Kaur (MARN: 2117328)

CASE NUMBER:  2213281

HOME AFFAIRS REFERENCE(S):          BCC2022/234341

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 September 2023 at 10:55 am (NSW time)

DATE OF WRITTEN RECORD:                24 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 24 January 2024 at 12:13pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – applicant had not been enrolled in a registered course of study – breached condition 8202 – an extensive period of non-enrolment – COVID had affected his ability to enrol and study – never made any attempt to enrol in any other registered course after his enrolments in Melbourne were cancelled – applicant never made any real attempt to study –  not satisfied that COVID prevented the applicant from engaging in productive study – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 116

APPLICATION FOR REVIEW

Introduction.

1. This is an application to review a decision of a delegate of the Minister of Home Affairs to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on 6 September 2022 for breach of condition 8202(2)(a) as the applicant had not been enrolled in a registered course of study from 29 July 2019 to 25 March 2022, a period of some 2 years and 8 months (the relevant period).

3. At the hearing on 27 September 2023, I made an oral decision to affirm the delegate’s decision and gave an oral statement of the reasons for so doing.

4. On 10 October 2023 the applicant first requested the Tribunal to provide written reasons.

5. What follows is a reduction of those reasons.

   STATEMENT OF REASONS

   Background, an overview of the process which led to the cancellation.

6. There is no issue that the applicant’s visa was subject to that condition, no issue that he was not enrolled in a registered course of study during that period and no issue that he was in breach of condition 8202 because of that. Nor is there any issue that the breach afforded grounds on which to cancel his visa. The only issue on the review, and it was indeed the only issue before the delegate, is whether the visa should be cancelled. 

7. On 23 August 2022 the NOICC was sent the applicant. It recited the fact that he had not been enrolled in a course of study during the relevant period and invited him to comment on a possible breach of 8202 arising from that non-enrolment.

8. On 29 August 2022 the applicant responded to the NOICC by an email in which he said that he had personal issues after he arrived in Australia on 29 June 2019, that he came out here to study and had high hopes of obtaining an educational qualification here, that he had enrolled in a package of engineering courses at the Royal Melbourne Institute of Technology (RMIT) but realised that he did not have any friends in Melbourne and as a result moved to Sydney.  He went on to say that he had difficulty in focusing on what he was doing, that he attempted to transfer his studies to Sydney but was unsuccessful. 

9. Just pausing here, I have real difficulty with this account because the applicant has told me that he never reached Melbourne, that he travelled to Sydney from Pakistan and that he never attempted to transfer his studies to Sydney after his enrolments in Melbourne were cancelled on 29 July 2019 for non-commencement.

10. He went on to say in the response email that COVID created issues for him, that he had been worried about his mother back in Pakistan in circumstances where his father had passed away before he arrived here, that it was a difficult period for him and that he had to contend with a decrease in financial support from his mother. 

11. Again, I have concerns about this evidence because he told me today that his mother had informed the Department at or about the time the VA was filed that she had funds in the order of $140,000 to cover his tuition fees in the engineering package.

12. I do not accept his evidence in his response email that he experienced any financial constraints of this sort. Certainly, he has given to me no oral or other evidence to support this assertion.

13. He goes on in the response email to say that he was concerned about his mother’s health and that he had never been away from his home in Pakistan before, that it was a new experience for him, he was unsure what to do and that he was getting worried because he could not go back to Pakistan at that time when COVID impacted international travel from  Australia.

14. He also says that he talked to his father when he was alive and shared problems with him and that once he lost his father, he had no one to discuss these things with. He does not explain in the response email, and he did not explain to me, why it was that he could not discuss them with his mother particularly given that she was the sponsor of his proposed studies here. He does say in the email that he did not want to reveal his situation to her, evidence which I interpret to mean that he did not want to tell her that he had not been studying.

15. He goes on in the email to deal with the matters which the delegate ultimately addressed in his decision. He says that the idea of him studying in Australia was a dream his father had, that it would be embarrassing for him to return to Pakistan empty handed, as it were, and that his visa should not be cancelled because of that fact. He does not deal with the actual circumstances in which the ground for cancellation arose other than to say that he complied with his other visa conditions, and he refers to COVID and to the other personal issues he says he was having.

16. He also says, and I accept, that he re-enrolled in the course at the Macallan College, a Graduate Diploma of Management, on 25 March 2022 before he got any notice from the Department regarding his visa.

17. He also provided to the Department a COE for the course at Macallan, a document generated on 25 March 2022 which nominated a start date of 4 April 2022 and a projected end date of 31 March 2024.

18. Interestingly, he does not refer in the email to this course other than to say that he was enrolled in it before he received the NOICC. He does not say, for example, that he had engaged in any studies in the course before the NOICC was served on him, a matter which I will return to in a moment.

19. The decision to cancel his visa was made and notified on 6 September 2022. Given that I am affirming the delegate’s decision I do not propose in these oral reasons to recite in detail the findings which the delegate set out in his reasons.

20. After finding that a ground for cancellation existed, the delegate addressed the individual factors which he was required to consider, namely the applicant’s response to the NOICC and the guidelines set out in the Procedural Instruction Manual under the heading General Visa Cancellation Powers.

21. As will later be seen I broadly agree with his findings other than his finding that the applicant’s enrolment at Macallan was in response to an email which the delegate said had been sent to the applicant on 31 January 2022. I cannot agree with this finding because there is no email of 31 January 2022 in the Department’s file, nor is there any other written communication with the applicant prior to the Department’s email of 16 August 2022 in which it seeks an update from him regarding his contact details for the purposes of serving the NOICC.

22. It thus seems to me that the initial contact from the Department took place on 16 August 2022, some months after the applicant had enrolled in the course at Macallan. Certainly, the applicant gave oral evidence to this effect, evidence which I am inclined to prefer.

23. Apart from that finding, I broadly agree with what the delegate had to say about the specific factors referred to in the decision under review and with the weight which he accorded to them.

24. I will come back to look at these in more detail later in these reasons.

    Procedural aspects in the review, including the hearing.

25. The Review Application was filed on 8 September 2022 and is within time.

26. The applicant has not fully engaged with the review process. He did not respond to the Hearing Invitation until the day prior to the hearing. The invitation had been sent to him on 7 September 2023 and invited him to attend a hearing by way of video conference today, 27 September 2023. The letter states that he was to provide all documents on which he wanted to rely by 20 September and that he needed to respond to the invitation within 7 days of him having received it. He did not do either of these things.

27. The only thing which he did do was to return a completed Hearing Response form late yesterday, in which he has elected to have a hearing, and he fronted the hearing today with his RMA, Mrs Kerr, to give evidence and present his review case. 

28. He gave his oral evidence in English over a period of about 1.5 hours. He seemed to have quite a good understanding of it. Although I can accept some of his evidence because it broadly accords with the objective features of the case, I have difficulty in accepting other parts and will come back to have a closer look at them in a moment. He was ably assisted by Mrs Kerr who made some oral submissions during the evidence and at the conclusion of it.

29. During Mrs Kerr’s oral submissions, we discussed whether the applicant had engaged in any studies at Macallan since the course began in April 2022. He had told me that his enrolment in that course was cancelled shortly after his visa was cancelled. I have no difficulty accepting that it was having been provided today with a copy of the Bridging Visa which was granted to him on 16 September 2022 after I enquired with Mrs Kerr about the conditions on which the Bridging Visa was granted.

30. Mrs Kerr indicated that she wanted to provide a USI transcript to establish that the applicant had in fact engaged in studies at Macallan. This exchange took place in the context of the applicant’s oral evidence to the effect that he had studied at Macallan for about 4 months during Semester 1 of 2022. Having asked him how many subjects he had studied during that period, after a long pause he told me that he had studied 3 subjects but, on further investigation, was unable to identify any of them. Mrs Kerr then indicated there could be a USI transcript or other record which could clarify whether he had engaged in any studies in this course, at that or any other time.

31. I then enquired as to whether Mrs Kerr was seeking an adjournment to obtain the USI transcript and I think she indicated that that was her preferred position.

32. As I indicated in my exchanges with her at the time, the Review Application in this case was filed on 8 September 2022 and the applicant has had the benefit of her assistance in connection with the review for the past 12 months. He has had ample time to produce a USI transcript and other records, including an Interim Transcript, in support of his case but has not done this and has not explained to me why he has not done so.

33. As I indicated to Mrs Kerr during my exchanges with her, Interim Transcripts are issued by providers on the request of a student or an agent in circumstances where there is something to record, namely an attempt by a student to engage with the content of a course or the fact that a student has been granted study dispensations on the basis of recognised prior learning.

34. I do not draw any adverse inference from the fact that a transcript in this case has not been produced but, as I said to Mrs Kerr at the time, I am not prepared to adjourn the hearing simply to enable a USI transcript or other record to be produced in circumstances where the applicant has had ample opportunity to do this in a timely manner.

35. As I have already pointed out, the Hearing Invitation in effect makes a specific request for documents to be provided prior to 20 September 2023.

36. It is not the Tribunal’s statutory function in these cases to enable an applicant to treat a hearing as a dry run at which defects or deficiencies in a review case can be identified and, if given further time, remedied.

37. As a rule, an applicant will be expected to be ready to present the case at the hearing.

    Findings and evidence in the review

38. For reasons I will elaborate on later, I do have very real concerns about the applicant’s credibility in circumstances where, among other things, he has given to me an account of his initial movements which is impossible to reconcile with what he told the Department in his response to the NOICC. For that and other reasons I treat much of his oral evidence with considerable caution and, unless stated otherwise, do not accept it unless that evidence is supported by the objective features, is corroborated by other more reliable sources, is inherently plausible or consists of an admission against his interest.

39. As previously indicated, the applicant began by telling me that he had made no attempt to engage in any studies at RMIT before his enrolments in the engineering package were cancelled, that the projected cost of those courses was something in the order of $140,000, $45,000 for the Advanced Diploma and $95,000 for the bachelor’s degree. Those estimates sound to me to be about right.

40. He told me that his mother had the necessary funds at the time the VA was filed to pay for these courses.

41. As previously indicated, he went on to say that he never went to Melbourne, contrary to what he said in his response email, and travelled directly to Sydney without making any attempt to enrol in any other courses of study.

42. There was some discussion about this at the end of the applicant’s evidence. Mrs Kerr suggested that I clarify that evidence with him, which I did, and he confirmed again that he never made any attempt to enrol in any other registered course after his enrolments in Melbourne were cancelled in July 2019, until he enrolled at Macallan in March 2022. He accepted that what he had told me previously was correct.

43. What he did do after a few months in Sydney was to find work in a retail shop in Fairfield apparently. He said, and I accept, that he stayed with friends some of whom were from Pakistan in a shared house. He worked in the shop for 2 or 3 months and was not working at the time COVID impacted Australia in March 2020 and did not work at all during COVID.

44. He went on to say that his mother paid most of his living expenses, but he had some funds of his own, presumably from his work activity, which he also used.

45. I accept that he probably came out here with hopes of an education but found the reality of it to be very different than what he had anticipated. 

46. But the fact remains that the applicant never made any real attempt to study prior to his enrolment at Macallan. Moreover, I am quite unable to make any findings in his favour regarding studies at Macallan during the period from March 2022 to when his enrolment in that course was cancelled, in September of that year.

47. I am thus faced with a situation in this case where the applicant has, on my findings, completely failed to engage in any productive or other study in any registered course since he arrived here in July 2019, now 4 years ago.

48. I accept that his Bridging Visa granted to him on 16 September 2022 had a ‘no study’ restriction attached to it but of course that condition is discretionary, and it was open to him to apply to the Department to modify it as his circumstances required. The fact that he took no steps to have the Department waive the ‘no study’ restriction comes as no surprise in circumstances where, on my finding, he had not studied at Macallan as from March of that year.

49. Returning to his oral evidence, he said that he never made any attempt to study after COVID impacted the educational system here in March 2020. It is well-known that the restrictions which COVID imposed on the system in Australia had been relaxed, if not entirely removed, by October 2021.

50. He accepted that when he enrolled at Macallan that was the first time he had taken any steps to enrol in any course of study since he arrived in Australia. As I indicated earlier, this admission was made in the early stages of his evidence, and it was reiterated towards the end of it.

51. When I asked him why he eventually enrolled in the course at Macallan he told me that he wanted to study but later said that he had engaged an agent to advise him at that stage and that his enrolment in the Graduate Diploma took place in the context of advice he was given at that time.

52. I have doubts as to whether in these circumstances the applicant genuinely wanted to engage in studies at Macallan for legitimate purposes. It seems to me that it was most probably a strategic step taken to improve his position at the time rather than a genuine attempt to engage in study for those purposes. Certainly, because the applicant had engaged an education agent to advise him, he would almost certainly have been made aware of the need to maintain enrolment.

53. Mrs Kerr also told me that the applicant now wants to enrol in another course. When I asked her to indicate what he had in mind, she said that the course he now wanted to enrol in was an Advanced Diploma of Civil Engineering.

54. Thus, the applicant has no present intention of re-engaging with his studies in the Management course. Rather, he wants now to revert to the course which he was enrolled in at RMIT, or at least something similar, which gives me no reason to be confident that if given another chance he will indeed engage in productive studies.

55. It strikes me that, for reasons best known to himself, he has had, and still has, other priorities. I have no doubt that his work activity in Australia has had something to do with his appalling study history. He is now working two jobs, he said, and has been for some time, as a delivery driver and in a convenience store in Coogee, I think he said. Anyway, he works between 4 and 5 days a week on average.

56. There is nothing to prevent him engaging in full-time work. There was a restriction on his work activity under the subject Student visa but of course that visa was cancelled in September 2022.  He said that he started to work in November 2021 which he may well have done. He also said that he had not worked from the end of 2019 to November 2021.

57. I am prepared to accept his evidence on these aspects but ultimately not a lot turns on it.

58. I do have the distinct impression that the applicant has been more concerned about engaging in remunerative work activity than he has been about studying.

59. He told me, and I accept, that the first time he was notified by the Department concerning his visa was on 16 August 2022 when the Department asked him to update his contact details.  Ordinarily, that might be a significant finding in circumstances such as these because he had enrolled in the course at Macallan in March 2022. The problem with that in this case is that I am not satisfied that the applicant has ever engaged in productive or any study at Macallan.

60. His oral evidence on that topic was very unconvincing. There were long pauses in answering simple questions which I would expected him to have had a recollection about. He has given to me no reason to think he engaged in any studies, let alone passed any subjects.

61. For an applicant to tell me, as this one did, that he had been studying 3 subjects for 4 months in 2022 but was unable to identify any of them is incredulous.

62. Towards the end of his evidence in response to a question from Mrs Kerr he said that when his visa was cancelled Macallan did not send to him an interim transcript but there may be reasons for this which do not assist his case. As I suggested to Mrs Kerr, very often the reason for a provider not producing a transcript is because there is nothing to record in circumstances where a student has not engaged in studies.

1. Turning to the specific factors which I am required to address, as I have indicated in many of these cases, COVID of itself is not a reason for an international student not to study. If such an applicant wishes to advance a case in the Tribunal that he or she has been unable to study because of COVID, the Tribunal expects the applicant to produce credible and reliable evidence to establish that proposition. 

2. That evidence usually consists of a medical report from a suitably qualified psychologist or psychiatrist supporting what the applicant claims. Absent that sort of evidence, although there are rare cases in which the Tribunal has acted without it, as a rule the Tribunal will not act on unsubstantiated and self-serving assertions to that effect.

3. In this case, the applicant did not even seek to make out a case to that effect in his response to the NOICC. In his response email he simply says that COVID impacted Australia, that it distracted him, and he was concerned about his mother. He does not in terms suggest that he was unable to study, and nor could he because the fact is he never made any attempt to do so. 

4. I accept, as I indicated to Mrs Kerr during her submissions, that the applicant was most probably worried about his mother in these circumstances. It would have been natural for him to have been concerned about her. But to go from that point to the proposition that he was unable to study because of COVID involves a very long bow. I am by no means satisfied that COVID prevented the applicant from engaging in productive study.

5. What I am left with in this case is a very long and largely unexplained period of non-enrolment, something in the order of 2 years and 8 months. As a rule, the longer the period the greater the need for an acceptable explanation. There is none in this case on the evidence which I have heard. It may well be, although I have some misgivings about it, that the applicant’s purpose in coming out to Australia in the first place was to study but, in any event, his purpose in remaining here since July 2019 has not been to study. This is, in my view, a very significant if not overwhelming factor in favour of cancellation of the applicant’s visa. 

6. Hardship is a more difficult issue in this case because the applicant has given almost no evidence about it. Whilst I am prepared to assume that his mother will be disappointed, I am quite unable to find that the applicant himself would suffer any real hardship, let alone undue hardship, because of the cancellation of his visa. He has been in so many ways the author of his own harm.

7. In the circumstances, I would give this factor some little weight against cancellation, but it is peripheral in the overall circumstances of the case.

8. I have already dealt with the circumstances which the breach of this fundamental condition occurred. The delegate found, and I agree, that although the impact of COVID was largely removed by about October 2021 the applicant made no attempt to enrol until March 2022 and then did not study let alone make any progress in the course. Again, these are matters of concern and I would give them, in the overall circumstances of this case, significant weight in favour of cancelling his visa.

9. As to the other factors referred to by the delegate, I agree with his findings about them and the weight which he attributed to them in the overall circumstances of the case.

   Summary and conclusion

10. Having given due weight to the relevant discretionary factors, I am of the view that the reasons for cancelling the visa in this case clearly outweigh the reasons for not cancelling it. 

11. Having considered the relevant circumstances, I have no real difficulty in concluding that the decision of the delegate should be affirmed.

    DECISION

12. The Tribunal affirms the decision under review.

    Michael Bradford
    Member