1909042 (Migration)

1909042 (Migration) [2019] AATA 6208 (18 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1909042
MEMBER:Elizabeth Tueno
DATE:18 December 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 18 December 2019 at 10:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required Australian Qualifications Framework level – consideration of discretion – purpose of travel – protection claims – responsibility to comply with visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 April 2019 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).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(b) in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 December 2019 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
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
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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant must maintain enrolment in a registered course that, once completed will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.
The applicant’s visa was granted on 6 October 2017 in relation to a Bachelor of [Discipline 1] course, which would provide a level 7 qualification. The Provider Registration and International Student Management System (“PRISM”) indicated that the applicant’s enrolment in this course was cancelled [in] February 2018. [In] September 2018 the applicant enrolled in an Advanced Diploma of [Discipline 2] course, which would provide a level 6 qualification.
The applicant stated at the hearing that he was originally enrolled in a Bachelor of [Discipline 1] course [in] May 2017. He then enrolled in an Advanced Diploma of [Discipline 2] course. He said that his migration agent had advised him to change from the Bachelor degree to the Advanced Diploma. He said he has always maintained enrolment and has always had a COE (confirmation of enrolment). He said he blamed the agent for enrolling him in the lower course.
He stated that in August 2019 he received an offer to enrol at [University 1] in a Bachelor of [Discipline 1] course commencing in March 2020. He provided a letter from the University which confirmed this to be the case.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course at the same level or higher than course for which he was granted the visa. Accordingly, the applicant has not complied with condition 8202(2)(b).
Consideration of the discretion to cancel the visa
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
The applicant is a [age] year old from Pakistan. He gave evidence at the hearing that he arrived in Australia [in] June 2014. He stated he came to Australia for protection from events and people in his home country and that his migration agent had told him to come to Australia. His parents told him to study hard and get permanent residency in Australia.
He said he requires protection because the authorities in Pakistan were “after him to kill him”. He also said that he had had contact with terrorists and had been exposed to them. He claimed he had spent two weeks in prison before being moved to a militant camp where he was told they expected him to go on a suicide mission. He said his father paid money and he was released and left alone on the condition that he leave Pakistan and not return.
He said that when he lodged his application to the Tribunal in relation to his student visa cancellation, he had also applied for a protection visa. This protection visa has since been refused on the basis that his intention in coming to Australia was for study rather than protection. He said that he is on a bridging visa in relation to this protection application and he will be lodging an application for review of the protection visa decision. The applicant provided the Tribunal with a copy of the protection visa decision record and it is clear that the decision maker did not accept his claim for protection for a number of reasons. The decision maker was not satisfied as to the credibility of the applicant and the veracity of his claims, that he genuinely feared being harmed in his home country. The decision maker had concerns about the delay in applying for the protection visa after the applicant had been in Australia for five years and only applied after his student visa was cancelled.
The applicant said that he fears for life back home in Pakistan and he has not returned home for the last five and a half years since arriving in Australia. He said it was his parent’s decision to send him to Australia and that he misses his family and friends in his home country.
It is noted that the applicant in an email to the Department dated 9 March 2019 the applicant stated, “I arrived in this Country with a focused mind, preparedness and with target-orientated mentality…My mother who is a renowned [Occupation 1] in one of our Local [workplaces] back in Pakistan…I leave to your fine sense of judgment because I desire to keep my head up when I return to my mother”. This implies the applicant intended to return to his mother in Pakistan. There is no mention of fearing for his life, that he had been in contact with terrorists and spent time in a militant camp expected to go on a suicide mission.
The absence of any mention of this raises concern about the truthfulness of the applicant’s evidence given at the hearing about his fears for his safety if he returns to Pakistan. Importantly, the applicant’s protection visa application has been assessed and has been refused.
While the Tribunal accepts that the evidence that the applicant has been offered a place in a Bachelor course at [University 1], he has yet enrolled in this course and pay the tuition fees.
Although the Tribunal has not considered the merits of protections visa application (as this is not before the Tribunal for review) the Tribunal has taken into account the differences the accounts given by the applicant to it and makes a finding about the credibility of the applicant. The Tribunal does not accept the applicant’s evidence about his need to stay in Australia. The Tribunal places weight on the version presented by the applicant to the Department in his email dated 9 March 2019 where he states that he expects to return to his mother and the absence of any concern about threats or fear about returning to Pakistan. If the applicant did hold a genuine fear or concern, there would be consistency in his story that he presented to the Department in his student visa and protection visa applications.
The Tribunal considers that the applicant is motivated to remain in Australia for reasons other than for study or protection. He has made it clear that he wants to remain in Australia and become a permanent resident. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.
The circumstances in which ground of cancellation arose
As noted above, the applicant was originally enrolled in a Bachelor of [Discipline 1] course [in] May 2017. He then enrolled in an Advanced Diploma of [Discipline 2] course. He said that his migration agent had advised him to change from the Bachelor degree to the Advanced Diploma. He blamed the agent for enrolling him in the lower course. The Tribunal notes that applicant did complete the Advanced Diploma of [Discipline 1] in September 2018. It also notes that prior to enrolling in the Bachelor of [Discipline 1] course in May 2017, the applicant had also completed a Certificate IV and Diploma of [Discipline 1].
The account provided by the applicant at the hearing about the circumstances in which the ground of cancellation arose is consistent with the explanation provided by the applicant in his email to the Department dated 9 May 2019. In that email, he stated that his agent told him that [Occupation 2] and [Occupation 3] were more popular in Australia and overseas. He said that his agent never told him the consequences of changes course however he went on to state “I should have learned by now that VISA Conditions must be read before taking any initiative”.
The Tribunal considers it was the applicant’s responsibility as the visa holder to be familiar with the conditions attached to his student visa. It is not enough to blame others for decision his own decision to change from a Bachelor course to a course that would provide a lower level qualification.
Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
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. Accordingly some weight is given in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said he and his family would suffer emotional and psychological hardship as well as fear. He stated that financial hardship was not an issue. He claimed that he had no other place to go and that there is no one to look after his safety and his future. He doesn’t know where to go and is lost.
As noted above, the Tribunal has reservations about the veracity of his claim for protection given he has presented differing accounts of why he came to Australia and his intentions for the future. However, the Tribunal does accept that the applicant will suffer some emotional and psychological hardship if his student visa is cancelled and he is unable to commence and complete the Bachelor of [Discipline 1] course. Accordingly, the Tribunal gives this a small amount of weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, 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.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
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 applicant offshore, he would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. 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. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. His protection visa application has been determined and has been refused. Pending the determination of this student visa application before the Tribunal, he will lodge an appeal to the Tribunal in relation to his protection matter. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. In reaching this conclusion, the Tribunal has placed greater weight on the grounds in which the grounds for cancellation arose and the applicant’s lack of a compelling need to remain in Australia.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9

[2019] AATA 6208

18 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies