RIAZ (Migration) [2017] AATA 2469 (26 July 2017)

Last Updated: 11 December 2017

RIAZ (Migration) [2017] AATA 2469 (26 July 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr SUFIAN RIAZ

CASE NUMBER: 1617722

DIBP REFERENCE(S): BCC2016/2872488

MEMBER: Brendan Darcy

DATE: 26 July 2017

PLACE OF DECISION: Melbourne

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 July 2017 at 1:11pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – No enrolment in a registered course – Applicant’s immaturity – Genuine interest in hairdressing – Diploma relevant to applicant’s genuine personal interest – Genuine student

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 1.40A, cl 573.321

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breach r.573.321 and condition 8516 imposed on 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 appeared before the Tribunal on 4 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa. This condition required the visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
7. The applicant was granted a student visa on 24 February 2014 with condition 85616 attached and arrived in Australia in 26 February 2014.
8. At the time of the granting of the student visa, the delegate was satisfied that the applicant met the requirements of subclauses 573.231 or 573.223(IA). These clauses require the applicant to be enrolled in a bachelor or master degree course or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.
9. According to the decision record he was enrolled in a package of course work including English for Academic Purposes, a Certificate of Frontline Management and a Diploma of Business at the time of the grant of the visa. PRISMS records indicate that the applicant was granted a deferment in September 2014 for compassionate or compelling circumstances. The same record indicates that the applicant finished English for Academic Purposes and a Certificate IV in Frontline Management on 29 September 2014. The records also indicate that the applicant enrolled into a Bachelor of Business (Executive Administration) in 24 April 2014 but the applicant did not commence these studies and the enrolment was cancelled on 14 July 2015.^[1]
10. PRISMS records indicate that the applicant applied to undertake a Diploma of Management and it was recorded on 16 June 2015 that the applicant did not commence these studies and was subsequently cancelled.
11. PRISMS records also indicate the applicant was enrolled in Bachelor of Business (Executive Administration between 14 July 2015 and 10 August 2015 and that the applicant had not re-enrolled
12. The decision record also indicates that the applicant had been enrolled in Certificate IV in EAL, Certificates II and IV in Hairdressing and a Diploma of Salon Management, obtained on 16 September 2016.
13. On 23 September 2016, the department emailed the applicant inviting the applicant to reply to the same email within two days before the department issued a NOICC. The applicant contacted the department and sought an extension for the response. This was granted and the applicant was given up to and including 10 October 2016 to respond.
14. On 10 October 2016, the applicant forwarded an email with three attachments: a Pakistani issued death certificate indicating that Riaz Ahmad passed away on 9 July 2014; a letter from Academies Australia Polytechnic dated 29 September 2016 indicating that the applicant was enrolled in English for Academic Purposes; and a short written statement by the applicant.^[2] The statement claimed that the applicant who was aged 19, received news on 9 July 2014 that his father had passed away. The applicant further claimed that he was shocked and then went into depression and ‘couldn’t’ even do any life activities’. After some time the applicant claimed that he had enrolled in a hairdressing course work based on the advice of family members but no Certificates of Enrolment (CoE) was submitted.
15. With no reply from the applicant, on 18 December 2016, a delegate on behalf of the Minister proceed to cancel the visa and the applicant applied to have that cancellation decision reviewed by the Tribunal on 25 October 2016 with the decision record attached.
16. During the hearing, the applicant did not dispute that he was not enrolled in a bachelor’s or master’s degree from 14 July 2015 until the date of cancellation. However he claimed he was enrolled in vocational education course for hairdressing. As part of his post hearing submission, the applicant submitted Certificates of Enrolment for a Certificate IV in Hairdressing and a Diploma of Salon Management at the Australian Institute of Technical Training indicating that the date of enrolment was 16 September 2016 –a week before the date of the NOICC’s issuance. None of the document indicated that the applicant had been enrolled in a bachelor’s or master’s degree.
17. According to the decision record, PRISMS and the applicant’s own testimony and submissions, all the available evidence confirmed that the applicant was not meeting condition 8516 attached to his student visa as he was not maintained an enrolment in a registered course relevant to a subclass 573 visa since July 2014 and right up to the decision to cancel the student visa and right up to the time of writing this decision.
18. 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 the power to cancel the visa should be exercised.

CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
20. Evidence available at the scheduled hearing also indicated the applicant was enrolled in a vocational educational course at the time of cancellation but that enrolment does not satisfy condition 8516 as it is a course that is not relevant the requirements as a holder of a subclass 573 student visa since 14 July 201.5
21. In this case the Tribunal has more information about the situation of the applicant than was before the delegate. The applicant has had the advantages of appearing before the Tribunal. Overall the Tribunal finds the applicant to have genuinely attempted to answer the questions put to him during the scheduled hearing. The Tribunal has had regard to, and accepts, the overall consistency between his personal statement in response to the NOICC and the testimony he provided at the schedule hearing.
22. Given there is a submitted death certificate about the date of his father’s death by natural causes, the Tribunal accepts that the applicant did experience a degree of grief and psychological difficulties because of his father’s demise at the claimed time. PRISMS demonstrate the applicant did engage his education provider in seeking a deferment in September 2019. However the applicant claimed that this grief and depression was deep and lasted more than two years before he could properly engage in his studies. Given the applicant was unable to provide any medical evidence about depression, the Tribunal finds that the applicant had embellished the depth of his bereavement to both the department and the Tribunal. This embellishment was particular apparent when the applicant claimed he did no life activities at all but did not seek any medical attention. Nevertheless the Tribunal acknowledges the applicant’s grief was genuine and profound and in combination with his immaturity, the factors affected the applicant’s disengagement from enrolled studies and prompted a re-evaluation of career and study choices. Accordingly it places some - but not a significant - amount of weight on these circumstances beyond the applicant’s control leading to his non-compliance in favour of the applicant.
23. However the Tribunal places some weight that is unfavorable towards the applicant when he did not seek any assistance provided by his education provider during 2015 and 2016. Accordingly the Tribunal places some weight in having the applicant’s visa cancelled.
24. The applicant demonstrated to the Tribunal that did not understand fully the conditions attached to his visa, either on arrival or shortly after arriving in Australia, and the implications that he may encounter if he is not in compliance. The applicant also demonstrated a lack of knowledge about migration laws pertaining to student visas and did not take any action to apply for the new subclass 500 visa if he wanted to continue studying in Australia for vocational educational purposes. The Tribunal places only a little weight on these factors in his favour.
25. The applicant claimed he had originally enrolled in a Bachelor of Business Administration and later varied his enrolled to a Bachelor of Business (Executive Administration) in March 2014, on the advice of his father and his uncle and that he wanted to originally return to Pakistan to expand the family’s dairy farm. After his father’s passing and the ownership and operation of the family farm fell to his uncle and after consulting his mother and his brother, the applicant claimed that he changed his career ambitions towards owning salons in Pakistan. Although the applicant admitted he had no past experience in salons or barber shops, he expressed some enthusiasm for the craft as something artful and he has demonstrated some interest in business management by completing a Certificate IV in Frontline Management. Although the Tribunal has some concerns about the applicant’s claims about his motivations to become a hairdresser and salon entrepreneur, it notes that the applicant enrolled in corresponding coursework prior to the issuance of the NOICC, indicating that he had not enrolled solely for migration purposes. On this occasion, the Tribunal has provided the applicant with the benefit of the doubt that he is genuinely interested in hairdressing and genuinely wants to remain in Australia for the purposes of study. Accordingly it places considerable weight on these factors in favour of visa not remaining cancelled.
26. The Tribunal notes the delegate found there is no further evidence that the applicant has been non-compliant towards other visa conditions imposed on him and placed some weight on this factor in his favour. The Tribunal also notes that the applicant did eventually re-engage in studies after a substantial period of time not being enrolled. It places some weight on this factor that the applicant may not be compliant in the foreseeable future as a student visa holder.
27. The Tribunal notes that the applicant responded to the NOICC. However, the Tribunal finds the applicant had demonstrated little due diligence towards seeking a new visa for vocational educational purposes if he no longer wanted to pursue a degree course while in Australia. Given the applicant’s immaturity however, the Tribunal places a little weight that this past behaviour of the applicant as reflecting poorly on his future compliance with Australia’s migration laws.
28. The Tribunal accepts there may be some financial and other hardships as a result of the cancellation, including the disappointment that his family will experience. Whilst the Tribunal accepts that the applicant may suffer some hardship if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant hardships to the Tribunal. The Tribunal gives this factor little weight towards the visa not being cancelled.

Summary Findings

29. The Tribunal accepts that the applicant's purpose in travelling to Australia and remaining here is to study and that he does not consider Australia his home and genuinely wishes to depart when his studies are completed. The Tribunal, accordingly, considers this a significant and primary factor indicating that he is a genuine student for entry and stay temporarily. The Tribunal notes, and accepts, that the applicant has substantially been compliant and cooperative with the department. The Tribunal gives these factors some weight in favour of the applicant.
30. The fact remains the most significant and serious factor in cancelling the applicant’s subclass 573 student visa is his breach of condition 8516 at the time of his visa cancelled. However there are sufficient reasons for the Tribunal to believe that the applicant will be motivated to uphold condition 8516 or any other conditions imposed on any further student visa for vocational educational purposes.
31. However, after weighing up all the available evidence, the Tribunal has placed considerable weight on the applicant having enrolled in a diploma relevant to the applicant’s genuine personal interests and ambitions and it has treated the applicant with some leniency because of his bereavement and his immaturity.
32. Accordingly, the Tribunal has provided the applicant with the benefit of its doubts and finds that the correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.
33. The applicant should be aware that this decision was reached only marginally in his favour.

DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Brendan Darcy
Member

---

^[1] AAT Folio 41-43
^[2] AAT Folio 32-36