1933761 (Migration)

1933761 (Migration) [2020] AATA 4682 (9 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1933761
MEMBER:Michael Biviano
DATE:9 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 9 July 2020 at 4:20pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower AQF level than visa condition – study difficulties, mental health, father’s health and family’s financial hardship – transfer to lower-level, more affordable courses – consistent and successful study until cancellation of visa – re-enrolment at original level after receiving department’s notice – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)
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 25 November 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 subclause (2)(b) of condition 8202 of his visa, as he was not enrolled in a registered course at the same level, or a higher level, than the registered course in relation to which the 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 23 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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 be enrolled in a full-time registered course: 8202(2)(a);
·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: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(b) of condition 8202 of his visa, as he was not enrolled in a registered course at the same level, or a higher level than the registered course in relation to which the visa was granted for the period from 6 June 2018 to the cancellation of the visa on 25 November 2019.
The decision record of the delegate of the Department of Home Affairs on 25 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 1 February 2018, and gives the reasons for the cancellation of the visa (Decision Record).
The applicant prior to coming to Australia completed schooling in [Country] in 2013 and undertook studies at [University 1] in Pakistan which he completed in 2017.
The applicant was granted a Student (Higher Education) (Class TU 500) visa on 1 February 2018. At the time of applying for the visa he had undertaken to study a Diploma of [Subject 1] followed by a Bachelor of [Subject 1] (Honours) at [University 2] with a start date of 2 March 2020 and an end date of 31 December 2022, which is a course at level 8 of the Australian Qualifications Framework (AQF).
The applicant gave evidence that he struggled with his studies in the Diploma of [Subject 1] and it was difficult for him to adjust to studies in Australia. He studied four subjects in the first semester and he only passed one subject. The applicant claimed that he had to change his studies to a course which was more suitable and he decided to move to lower level courses.
The applicant claims that he changed courses because:-
a.When he arrived in Australia he suffered adjustment depression and anxiety;
b.He was encountering problems in his studies in the course; and
c.His father had stroke on 4 June 2018 in which caused the left side of his body to be paralysed. The applicant claims he was stressed by his father’s condition which caused his family financial hardship, which resulted in him having to transfer to lower, more affordable courses.
In support of that claim the applicant submitted the medical report of [Dr A] dated 16 May 2018, confirming that the applicant attended the medical practice with symptoms of acute stress, anxiety and depression, which was adding to his medical stress which confirmed that he was finding studies difficult and that he was unable to concentrate on his studies and that he wanted to change his course and enrolment.
The Decision Record confirms that the applicant was released from the Bachelor of [Subject 1] (Honours) from 6 June 2018. On 8 June 2018, he enrolled in Certificate III in [Subject 2], and Certificate IV in [related Subject 3] and a Diploma of [related Subject 4]. The applicant submitted Confirmation of Enrolment (COE) certificates for each of the courses. The Diploma was the highest level course, which was at level 5 of the AQF.
On 27 June 2019, the applicant completed a Certificate III in [Subject 2] at [College 1].
The applicant then commenced a Certificate IV in [related Subject 3] at [College 1].
On 23 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.
On 29 October 2019, the applicant enrolled in a Bachelor of [Subject 5] at [College 2] which is a course at level 7 of the AQF.
On 29 October 2019, the applicant, through his migration agent, provided a response to the NOICC (Response). As part of the Response the applicant, through his representative, submitted submissions and supporting documents, including COE’s and medical records (Reply).
Accordingly, by enrolling in the Diploma of [related Subject 4] course and then the Bachelor of [Subject 5], he was enrolled in courses that were not the same or higher level than a Level 8 course, and therefore in breach of condition 8202(2)(b) of the visa from 7 June 2018 until the cancellation of the visa on 25 November 2019, being a period of 17 months and 18 days.
The applicant prior to the hearing submitted an email through his representative dated 28 October 2019, providing his statement as to what occurred. The statement provided:-
[Name]
[DoB]
Explanation of my case:
1. My student visa subclass 500 was granted on 01 February 2018. I arrived in Ausrtalia [in] February 2018. I was enrolled in diploma of [Subject 1] leading to Bachelors of [Subject 1 – specialisation] at [University 2]. The course started on 19/02/2018. I was granted release letter from [University 2] on 06/06/2018 and i got enrolled in diploma of [related Subject 4]. [Subject 1 – specialisation] is the broadest form of [Subject 1] which covers a lot of different aspects of science. Due to high study pressure i realised in my first trimester at [University 2] that i should focus on one specific field related to [Specialisation] which is [Sub-specialisation]. My current course is relevant to the course on which i was granted visa. My plan now is to study diploma of [related Subject 4] and then complete my bachelors of [Subject 5] which will help me establish a business related to [Sub-specialisation] in my home country Pakistan. There is high scope of [Sub-specialisation] industry in Pakistan.
2 . In the mean time when i was already having adjustment problems in Australia . A devastating thing happened on 4th june 2018. My father had a stroke attack which paralysed his left side of body. At the time of diagnosis his heart was functioning at a low rate as well. My mother had to face all of this stress alone as i dont have any sibling in pakistan . My younger brother is also in australia. Due to these family issues i couldnt take admission in bachelors of [Subject 5] . I was struggling with emotional issues as it was not easy for me to see my father in a terrible condition but i had intention to study in bachelors of [Subject 5] as i had received offer letter from [College 3]. My father is still being treated and there is still no improvement in his health. My father wanted us to take good quality education from a great country like australia and come back to do good for my country pakistan. If my visa is cancelled and my father sees me in this condition. All his dreams will be shattered which will have a major negative impact on his health as well. My future will be destroyed as well as no university will then give me admission in pakistan. I have now taken admission in bachelors of [Subject 5]. Im now satisfying my visa condition.
3. My current progress is good. I have already competed certificate III in [Subject 2]. Im a bright student taking my studies very seriously. Its just because of serious family issues i couldnt take apropriate decisions on time.
4. Following evidence has been attached, Current coes, [University 2] coes, father's medical reports throughout the year and doctors summary about his medical condition, NOICC, current course completion, July 2018 offer letter, SOP
The applicant conceded in evidence that he was not enrolled in a registered course that, once completed, would provide him with a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted from for the period of 17 months and 18 days.
By reason of not being enrolled in a course at level 8 of the AQF or higher from 7 June 2018 and then being enrolled at a lower level courses, he did not meet condition 8202(2)(b) of his visa.
On the evidence before the Tribunal, the applicant has not complied with condition 8202(2) of his visa for a period of 17 months and 18 days. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
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 or to remain in Australia
The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above.
As discussed above, the applicant has been enrolled in courses and studied since his arrival in Australia. He studied the Diploma of [Subject 1] and was released. He transferred to a Certificate III in [Subject 2] at [College 1] which he completed on 27 June 2019.
The applicant was undertaking a Certificate IV in [related Subject 3] at [College 1], at the time the visa was cancelled. He has completed the Certificate IV, which he obtained in November 2019. He submitted the Certificate as evidence.
The applicant has studied consistently until the cancellation of the visa.
The applicant had enrolled in a Diploma of [related Subject 4] and a Bachelor of [Subject 5], which he wanted to pursue. There was an overlap in time of those enrolments. The applicant was unable to undertake study in those courses because he lost study rights due to the cancellation of the visa.
On 19 March 2020 the applicant obtained a COE to study a Graduate Diploma of [Subject 6] to study between 9 November 2020 and 3 July 2022 which is a course at level 8 of the AQF.
The applicant gave evidence that he intends studying and completing those courses in the future.
Having regard to the applicant’s evidence and his conduct of continued study during the time he has been in Australia, the Tribunal accepts that the applicant travelled to Australia and stayed here to study, and he has studied here during his stay and he intends to study here in the future.
In relation to the above matters, the Tribunal gives these matters substantial weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level course from 7 June 2018 until the cancellation of the visa on 25 November 2019, being a period of 17 months and 18 days. Therefore the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for such a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason for non-enrolment.
The applicant gave evidence that he was unable to maintain his enrolment in the Bachelor of [Subject 1] (Honours) because:-
a.he suffered adjustment depression and anxiety;
b.he was encountering problems in his studies in the course; and
c.his father had stroke on 4 June 2018 in which caused the left side of his body to be paralysed. The stroke caused him stress and impacted on his family’s financial ability to support his studies.
As discussed above, the applicant submitted the medical report of [Dr A] dated 16 May 2018, confirming that the applicant attended the medical practice with symptoms of acute stress, anxiety and depression, which was adding to his medical stress, which confirmed that he was finding studies difficult and that he was unable to concentrate on his studies and that he wanted to change his course and enrolment. The medical evidence supports the applicant’s reasons for not maintaining the enrolment.
The applicant gave evidence that the stroke had impacted on support from his family to meet the costs of his studies, especially the Bachelor of [Subject 1] (Honours). He claimed that his family was required to meet substantial medical expenses for his father, limiting their ability to meet his tuition expenses. The Diploma of [Subject 1] that the applicant was studying at [University 2] at the time was an expensive course at $55,200. However the applicant lost his enrolment on 6 June 2018 in the Diploma of [Subject 1] and transferred to a lower level course, Certificate III in [Subject 2] at [College 1], in which he enrolled on 8 June 2018.
The Tribunal does not accept the applicant’s explanation that he changed courses due to his financial circumstances caused by reason of his family’s deteriorating finances as a consequence of his father’s medical condition. The applicant’s father had a stroke on 4 June 2018, and the Tribunal does not accept that the applicant would have ascertained the impact on him financially in continuing studies in the Diploma of [Subject 1] and made arrangements to transfer courses within several days of his father having a stroke.
Whilst the Tribunal does not accept that the applicant lost his enrolment in the Diploma of [Subject 1] and Bachelor of [Subject 1] (Honours) as a consequence of his father’s stroke, it accepts that the financial hardship caused by the medical costs incurred by his family as a consequence of his father’s stroke would have impacted on his ability to enrol in courses at the higher level which are generally more expensive than VET courses, after losing his enrolment in those courses.
Further, the Tribunal accepts the applicant’s evidence and report of [Dr A] that the applicant was struggling in his studies and suffering from depression and adjustment anxiety in May to June 2018, and the Tribunal accepts that it impacted on the applicant maintaining his enrolment in the Diploma of [Subject 1] and Bachelor of [Subject 1] (Honours). The Tribunal accepts that these matters were a substantial cause of the applicant losing his enrolment in those courses.
However, those matters do not explain the long period of breach of 17 months and 18 days, during which the applicant undertook studies and completed a Certificate III and Certificate IV. While his family’s financial position may have had some impact on getting enrolled in a course at level 8 of the AQF, the applicant did enrol in a Bachelor of [Subject] on 29 October 2019, with a cost of $49,800. Clearly the applicant had funds to enrol in a higher level course.
Whilst the Tribunal accepts that the applicant changed courses due his struggles with his studies and his mental condition, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course. If he could not maintain that level of enrolment, it was open to him to apply to the Department for a new visa.
The Tribunal accept the applicant’s reasons for losing his enrolment in the course at level 8 of the AQF and not being compliant with the visa for a short period of time, however it does not explain why the applicant was not enrolled at level 8 of AQF or higher for a long period of time in circumstances where the applicant ought have been aware that he would be in breach of his visa.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a Bachelor level course or higher.
Having regard to the substantial period of the breach, and that the applicant was responsible for not being enrolled in the appropriate level of course, some weight is given towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that the visa cancellation would cause him and his family a substantial degree of hardship. He claimed that he would need to go back to Pakistan and due to his international schooling and qualifications in Australia, he would need to sit extensive exams, complete his O levels and undertake private tuition sufficient to meet the requirements to gain enrolment at university in Pakistan. He claims that there is no guarantee he would be able to enrol in a Bachelor’s degree course in Pakistan.
He also claims that if he is unable to complete his studies in Australia, the time he has spent in Australia would be wasted.

The Tribunal notes that the applicant has completed a Certificate III and Certificate IV course and he will not return to Pakistan empty-handed if the visa is cancelled.
However, the Tribunal accepts that there will be some hardship caused to the applicant and his family if the visa is cancelled.
While the Tribunal finds that these matters may be the consequences of the visa cancellation, they are not matters which would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters add some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa, as set out above.
Ultimately, the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.
The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled.
The primary purpose of the applicant is to undertake a registered course at a level appropriate to the visa granted. The applicant was not enrolled in a registered course at the appropriate level for a period of 17 months and 18 days, which is a long period to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a long period of time, and therefore in breach of condition 8202(2). The Tribunal accepts the circumstances of why he was not enrolled in a course at the appropriate level were beyond his control for part of the period of time but not the entire long period of time. The Tribunal gives this matter marginal weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, there was no information before the Department indicating that the applicant had been uncooperative to the Department or any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140 of the Act
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of visa.
Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.
However, these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled he would return to Pakistan and attempt to complete his studies, and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India; he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal considers that a relevant matter is whether the applicant is able to obtain enrolment in a registered course at a level appropriate to his visa. If the applicant is unable to obtain enrolment in a course that it is at an appropriate level to his visa, this will weigh towards his visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would continue to remain in breach of his visa condition.
The applicant gave evidence that on 19 March 2020 he had enrolled in a Graduate Diploma of [Subject 6], which is a course at level 8 of the AQF and made him compliant with the conditions of the visa. The Tribunal accepts that the applicant will be able to enrol in a course in the future at the same level he is required to maintain under the visa.
Accordingly, the Tribunal gives this factor marginal weight towards the visa being cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
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.

[2020] AATA 4682

9 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies