Abir (Migration)

[2017] AATA 3003

Abir (Migration) [2017] AATA 3003 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rubaiyet Shamsuddin Abir

CASE NUMBER:  1614710

DIBP REFERENCE(S):  BCC2016/2415349

MEMBER:Mr S Norman

DATE:18 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2017 at 9:35am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Personal hardship

LEGISLATION
Migration Act 1958, ss 116, 189, 198
Migration Regulations 1994, 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

1. This is an application for review of a decision dated 7 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was lodged with the Tribunal.

3. The delegate cancelled the visa on the basis that the applicant was in breach of condition 8202 (enrolment). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 30 October 2017 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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).

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

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 20 December 2012. By Notice of Intention to Consider Cancellation of that Student visa dated 16 August 2016, the applicant was advised that based on the Provider Registration and International Student Management System, it appeared that he had not been enrolled in registered course of study since 15 May 2016. Therefore it appeared the applicant did not meet the requirements of condition 8202(2)(a).

10. In his email response of 28 August 2016, the applicant said inter alia he arrived in Australia on 26 January 2013 and commenced a Foundation Program (Commerce) at the University of Sydney. He successfully completed this course however he was not able to progress to the Bachelor program at Sydney University as he did not have adequate marks.  He later contacted Macquarie University and understood that an agreement had been reached that he would be able to transfer to Macquarie University if he successfully completed some studies elsewhere. He then contacted Sydney Institute of Business and Technology - SIBT). He said he “missed [a] couple of months during that time” (though at hearing he said he was enrolled at SIBT for around 18 months – and only ceased when he realised he would not be able to transfer to Macquarie University). He also said his grandmother had passed away (death certificate provided). He then said it “took a couple of months to start overcoming this situation”. He then said SIBT did not honour their agreement and he believed they were ‘dodgy’.  

11. The applicant said he may have to “go back to take care of father” in Bangladesh; his father is old and “he definitely need someone to take charge of his business and as the eldest son of the family this responsibility” is the applicants. He also said his “family is more tense seeing his bizarre situation”. He said he is “planning to go in November 2017 as he is expecting to complete his bachelor by that time”. He said when he returns to Bangladesh he can readily get good work as education in Australia is well regarded. The applicant also provided other evidence which has been taken into account prior to finalising this decision.

12. That being said, when discussed at hearing, the applicant conceded he had not been enrolled in a registered course of study at least between 15 May 2016 and 16 August 2016.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 

15. Regarding the purpose of the applicant’s travel to and residence in Australia, the Tribunal noted the applicant had not been enrolled in a registered course of study between 15 May 2015 and up till he commenced his present Bachelor course on or around 28 November 2016. The applicant did say that he had previously attempted to enrol in a course of study but had inter alia failed to request a release letter from SIBT. He still says he wishes to obtain a degree qualification in Australia. However, the Tribunal is satisfied the applicant understood that a criterion for the grant of his Higher Education Student visa was that he maintained enrolment in a registered course of study. Based on the evidence before the Tribunal, the applicant had failed to maintain enrolment in a registered course of study for around 18 months.

16. Be that as it may, since arriving in Australia in January 2013 the applicant had completed the Foundation Program (Commerce) at the University of Sydney, and he had also been awarded a Diploma of Business on 19 August 2016 (from the IICT – International Institute of Commerce and Technology). In the circumstances, the Tribunal accepts the applicant’s intention in travelling to and residing in Australia was for the purposes of study.

17. As did the delegate, the Tribunal notes the Diploma of Business awarded by IICT is not a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) course. However, it is none-the-less a course the applicant successfully completed.

18. Regarding the applicant’s compliance with any conditions to which his visa was subject, the Tribunal (as did the delegate) notes that Higher Education Student visas are granted for the purpose of allowing non-citizens to study in Australia. A relevant visa holder must therefore maintain a primary intention of continuing to study in Australia at an appropriate level. That being said, the applicant had not been enrolled in registered course of study between 15 May 2015 and 28 November 2016.  

19. Regarding the degree of hardship that may be caused to the applicant or family members if his visa is cancelled, based on his evidence the Tribunal noted that he had come from a privileged background (his father was claimed to be an executive director of a multi-national company in Bangladesh). However, if his visa is cancelled, his and his family’s future prospects may be impeded. If his visa is cancelled he would become an unlawful noncitizen and liable to detention by virtue of s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied the applicant would be subject to indefinite detention. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to PIC 4013.

20. Regarding the circumstances which gave rise to the visa cancellation, as well as that which has been stated above, the applicant said his father has a ‘nerve illness’ (chronic headaches and fatigue for which he is still being treated); and that his grandfather is not well. The applicant had also said that as his father is not well, he would “need someone to take charge of his business and as eldest son of the family this responsibility” is the applicants. He also said his “family is more tense seeing his bizarre situation”. He said when he returns to Bangladesh he can get good work as an education in Australia is well regarded.  

21. Other evidence the applicant provided included a death certificate dated 12 April 2015; [various documents with personal details of the applicant]; an email sent by SIBT dated 24 February 2016; a copy of a Diploma of Business certificate dated 19 August 2016; a copy of a release letter from the University of Sydney dated 28 February 2014; a copy of the transcript for the applicant from the University of Sydney dated 4 December 2013. That being said, and regarding the applicant’s family circumstances, the Tribunal notes the applicant did not seek a deferment from his education provider so he could have returned to Bangladesh until he was fit and able to return to Australia to continue his studies.

22. Regarding the applicant’s [personal details of the applicant].

23. Regarding the applicants past and present behaviour towards the Department, based on the evidence before it the Tribunal is not satisfied the applicant has been uncooperative with either the Department or the Tribunal.

24. Regarding whether Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa, based on the evidence before the Tribunal I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

25. There is no person in Australia whose visa would be cancelled if the applicant’s visa is cancelled.

26. Next, and amongst other things, the applicant (by his migration agent) lodged the following with the Tribunal:

    ·     A COE from the Australian Institute of Higher Education P/L that the applicant enrolled in a Bachelor of Business course commencing 28 November 2016 and finishing 24 September 2019;

    ·     a statement from the University of Sydney saying the applicant completed all examinations and coursework for the University of Sydney Foundation Program on December 2013;

    ·     a Death Certificate from the Peoples Republic of Bangladesh;

    ·     [a number of documents with personal details of the applicant];

    ·     correspondence with SIBT;

    ·     untranslated documents; and

    ·     evidence about the Macquarie University “bust up”, and evidence from other education institutions.

27. The applicant also provided a statutory declaration dated 23 October 2017. He said he did not achieve sufficient marks in his Foundation Course to obtain enrolment in a Bachelor Degree at the University of Sydney. He then commenced to “explore other options”. He referred to inquiring with the Macquarie University and found their suggestions “very inviting”. He studied at the Sydney Institute of Business and Technology (as suggested by Macquarie University), but was subsequently advised that Macquarie University would not honour their previous ‘agreement’ to allow him to be enrolled at the University after he finished (or while he was studying) the SIBT course. He then became “very disenfranchised” and he was stressed. He felt he was being “exploited financially”. He then said around this time he commenced to experience personal hardships. He referred to his grandmother passing away in April 2015 and he said this “loss impacted him greatly as he was close to his grandmother”. He wanted to return to Bangladesh for the funeral but did not have the money to pay for the return ticket. He then referred to his grandfather having to seek medical attention. He said his “world felt like it was falling apart”. He then gained weight and ate unhealthy foods and [personal details of the applicant]. He then left SIBT. He later enrolled in a Diploma of Business with the International Institute of Commerce and Technology “which he completed on 19 August 2016”. He then enrolled in the Australian Institute of Higher Education and was granted a number of exemptions due to prior study. He now goes to the gym and feels better. He also said that some of his friends from Bangladesh are now studying in Australia and this has assisted him.

28. The applicant then said that in October 2016 one of his neighbours assaulted him by punching him in the face. The police were called and the man was arrested. The applicant had to attend court as a witness and he found this stressful. At hearing he explained this matter had not caused further problems after being finalised in ‘Southerland Court’.

29. The applicant’s migration agent also made submissions in a letter dated 24 October 2017. The agent then inter alia materially repeated much of the applicant’s claims. The agent also referred to [personal details of the applicant]. The agent noted that they were seeking a letter of support from his current education provider. The agent also referred to “various articles regarding the Macquarie University split with SIBT”.

30. A letter from the Australian Institute of Higher Education, and dated 27 October 2017, was lodged at hearing. Amongst other things, that said the applicant was a current student and that he was expected to complete his course (Bachelor of Business) by 24 August 2019 (that course had commenced on 5 December 2016).

31. At hearing, the applicant said if he cannot complete his studies in Australia it will bring “significant shame upon him in the eyes of his family who had invested so much in his future”. He also said he had almost completed the first year of his Bachelor Degree at the Australian Institute of Higher Education. The Tribunal requested a Statement of Attainment for the ‘first year’ of this course to be lodged by 12 December 2017 (though the Tribunal agreed to consider a request for an extension of time). However, no Statement of Attainment was lodged and no request for an extension of time was made to the Tribunal at the date and time of this decision. Be that as it may, the Tribunal had also contacted the applicant’s agent who advised by email of 15 December 2017, that they had not been able to contact the applicant and inter alia that they had “not been given any further instructions in relation to the Academic Transcript requested by the Member; nor have [they] been instructed to request an extension of time to provide this document… [and that they had] no further instructions in relation to this matter.” That being said, the Tribunal is satisfied it should exercise its discretion in this case to cancel the visa.

32. Therefore, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.