AHMED (Migration)

[2020] AATA 1208

AHMED (Migration) [2020] AATA 1208 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FARHAN SAKIB AHMED

CASE NUMBER:  1917170

HOME AFFAIRS REFERENCE(S):          BCC2019/1428447

MEMBER:Helen Kroger

DATE:1 April 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 573 Higher Education Sector visa.

Statement made on 01 April 2020 at 3:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – not enrolled in registered course – college’s extension of duration of diploma and advanced diploma courses – non-completion of one advanced diploma and enrolment in another – university’s cancellation of enrolment in degree course for non-commencement – applicant’s attempts to continue studying – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 June 2019 made by a delegate of the Minister for Home Affairs 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 applicant, Mr Ahmed, a Bangladesh national, was granted a visa on 20 October 2015 for the purpose of studying in Australia.

3. On the 9 May 2019, Mr Ahmed was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 17 May 2019 from Mr Ahmed, explaining that he did not agree there were grounds for cancellation.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling the 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.

5. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided the Tribunal a copy of the delegate’s decision record for the purpose of its consideration.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course. Mr Ahmed arrived in Australia in October 2015 for the purpose of studying a Certificate III in Accounts Administration, a Certificate IV in Accounting, a Diploma of Accounting and a Bachelor of Accounting, the latter at the University of Canberra. He was issued a Notice of Intention To Consider Cancellation on the 9 May 2019, and he provided a written response to the Department on 17 May 2019 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time. At the time, the alleged breach was put to Mr Ahmed, and the applicant did not dispute the finding that his COE had been cancelled due to the extension of time required to complete his Diploma.

11. On the evidence before the Tribunal, namely the applicant’s admission during the hearing, and his written response to the delegate on 17 May 2019, the Tribunal finds that the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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’.

13. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

14. The applicant is a Bangladesh national who travelled to Australia for the purpose of studying Accounting, enrolling in a Certificate III, Certificate IV, Diploma of Accounting, Advanced Diploma in Accounting and Bachelor of Accounting at the University of Canberra. The Certificate III, IV and Diploma were successfully completed at MEGA, the Macquarie Education Group with the Diploma of Accounting completed on 15 September 2017.  Mr Ahmed outlined to the Tribunal at the hearing, his academic history and the circumstances around the time that his COE was cancelled at the University of Canberra.

15. The applicant successfully progressed through his Certificate III and Certificate IV and was advised by his education provider, MEGA that the duration for both his Diploma and Advanced Diploma courses had increased by six months. He claims that he  believed that they would advise the University of Canberra of the change to the timing and the expected completion date of his courses.  The timeframe for the courses were originally scheduled so that the prerequisite courses were completed by 2017 and according to the delegate’s decision record, the MEGA Institute updated the COE’s in PRISMS on 15 April 2016.

16. The applicant submitted his final assessments for the Advanced Diploma of Accounting in October 2018 before flying home for a vacation, returning to Australia on the 23 January 2019.  He was advised by MEGA that he was required to resubmit course material, and claims that he was not advised of the time period he had for resubmitting material for assessment. He told the Tribunal that he was unable to undertake the course material without guidance from one of the teachers, who was on leave over the summer period. He indicated that he was told in March that the time had expired for re-assessment and accordingly he didn’t complete the Advanced Diploma.

17. The applicant indicated that he contacted his migration agent to seek his advice and was told that he should enrol in a new COE , being the Advanced Diploma of Leadership and Management. The NOICC was issued on the 9 May 2019.

18. The Tribunal provided the applicant with the opportunity to submit any further documentary evidence following the hearing, to support his claims, including certificates regarding his academic history, COE’s,  and the status of his enrolment with the University of Canberra. The applicant submitted copies of his completion certificates from MEGA Institute for the Certificate III, Certificate IV and Diploma in Accounting, a Statement of Attainment of units completed towards the Advanced Diploma of Accounting, copy of a new COE for the Advanced Diploma of Leadership and Management with a course start date of 16 September 2019 with an initial fee paid of $1500, and a copy of an email exchange from the University of Canberra, dated 17 September 2019. This email confirms that the applicant’s COE was cancelled on the basis that he did not commence the Bachelor program as originally scheduled. In this email, the University indicates that they  attached a PDF copy of the communication that was sent through to the applicant at the time of the cancellation. The University also confirms that they have no record of receiving advice from MEGA Institute in regard to any deferment of the applicant’s Bachelor course.

19. The Tribunal has carefully considered the applicant’s claim that he was unaware that his COE was cancelled at the University of Canberra and his claim that MEGA Institute was responsible for ensuring his enrolment continue with the University.  Whilst the Tribunal finds that it is the responsibility of the applicant to ensure that he is compliant at all times with the conditions attached to his visa, namely condition 8202(2), and that the applicant has not satisfied the Tribunal that he has fulfilled his obligations in this regard, the Tribunal has considered the applicant’s successful completion and progression through his various courses whilst studying in Australia. The Tribunal has reviewed documentation that indicates that the applicant has secured a COE for an Advanced Diploma of Leadership and Management.

20. The Tribunal has considered all the evidence before it, with regard to the academic circumstances of the applicant as outlined above, and whilst it considers that it is the responsibility of the applicant at all times to ensure he is compliant with the conditions attached to his visa, it gives some weight to the successful course progression demonstrated by the applicant, and his attempts to continue studying during his time in Australia.

21. Accordingly, the Tribunal finds that these considerations outweigh any weight given in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

22. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The applicant travelled to Australia for the purpose of gaining an Australian higher education sector qualification, in an endeavour to improve his future employment opportunities and prospects in his home country of Bangladesh. He indicated to the Tribunal at the hearing, the significance of a cancellation of his visa and the impact this would have on securing a “good job”. He explained to the Tribunal that he travelled to Australia to study accounting as he always wanted to be an Accountant and that he needed to complete his undergraduate degree as the Diploma in Accounting that he had completed would not be considered a valuable qualification in order to secure the employment he aspired to. He told the Tribunal that he moved to Australia to live with his Uncle and Aunt here, his Uncle being a Professor in IT with a local education provider. He claims that as Bangladesh and Australia are part of the Commonwealth, that the respect and regard given to an Australian qualification is more significant than others. The applicant told the Tribunal of the frustration and disappointment expressed by his Uncle when he explained what had happened.

24. Whilst the Tribunal considers it not to be unique circumstance that an applicant or their family would suffer disappointment should the visa be cancelled, and gives this no weight, the Tribunal has considered the length of time and successful completion of the Certificate and Diploma courses and gives this some weight in favour of the applicant. The Tribunal has considered the potential impact of the cancellation of the visa on the applicant’s possible employment opportunities, and accordingly the long term impact this would have on his potential financial circumstances and accords this significant weight in favour of the applicant.

25. The applicant did not claim any psychological hardship, submitting to the Tribunal that he accepted that it was his fault and that he should assume responsibility.

26. The Tribunal appreciates that a cancellation of the visa would cause some emotional distress and considers that this is not an unusual reaction to the cancellation of a visa and accords it no weight in favour of the applicant. The Tribunal has considered the potential economic and financial hardship that the applicant could be subject to with the limitation of employment opportunities as an Accountant should he not qualify and is satisfied that significant hardship would be faced and accordingly gives this aspect significant weight in favour of the applicant and not cancelling the visa than the period of time that the applicant was not enrolled.  

    Circumstances in which ground of cancellation arose

27. In addition to the above factors that have been canvassed by the Tribunal in its consideration, the Tribunal has regard to the claims of the applicant that he was unaware of the cancellation of his COE at the University of Canberra. The applicant explained to the Tribunal that both the Diploma of Accounting and Advanced Diploma of Accounting had been extended by a period of 6 months each after his initial enrolment and that he had enrolled with the MEGA Institute as a “package” and that he had assumed that when the structure of his Diploma and Advanced Diploma courses had been extended, that in turn his Bachelor degree would be extended as well. Whilst the Tribunal has some sympathy with this claim, given it was the first time that the applicant had undertaken academic sties in Australia, the Tribunal finds that it is the responsibility of visa holders to ensure they are compliant with the conditions attached to their visas. The Tribunal invited the applicant to comment on this and whilst the applicant told the Tribunal he was unaware of the circumstances, the applicant did not dispute that it was his responsibility to be fully aware of all circumstances and the status of his enrolment at any time.

28. When the applicant became aware that he did not have a valid COE, he indicated that he sought advice from his migration agent who assisted in securing a valid COE for an Advanced Diploma in Leadership and Management. This in effect meant that the applicant was not enrolled in a registered course of study for a period of 9 months and the Tribunal considers this to be a significant period of time in the course of a student’s study period.

29. Given these circumstances, the Tribunal gives some weight to the circumstances in which ground of cancellation arose and more weight to the period of nine months in which the applicant was not enrolled.

    Past and present behaviour of the visa holder towards the department

30. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings and gives this consideration some weight in favour of the applicant.

    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

31. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision. The applicant would be excluded for a period of three years from applying for another visa to Australia as a consequence of the cancellation and the Tribunal gives this some weight in favour of the applicant.

    Whether any international obligations would be reached as a result of a cancellation

32. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

33. Whilst the Tribunal considers it not unreasonable that a visa applicant be expected to be compliant with all conditions attached to their visa, the Tribunal has considered the remedial action taken by Mr Ahmed in securing another COE, in an endeavour to continue his studies towards enrolment for a Bachelor of Accounting.  The Tribunal has had regard to the applicant’s genuine remorse, candid and honest demeanour during the hearing and the extent of satisfactory completion of courses up to the last semester of his Advanced Diploma of Accounting.

34. The Tribunal has considered all factors both individually and cumulatively in the context of the breach and gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and as such, accords more weight in favour of the applicant compared to any weight given in cancelling he visa.

35. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Helen Kroger
    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.