Akhmedov (Migration)

[2020] AATA 565

Akhmedov (Migration) [2020] AATA 565 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Otabek Akhmedov

CASE NUMBER:  1904991

HOME AFFAIRS REFERENCE(S):          BCC2018/5404661

MEMBER:D Triaca

DATE:25 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2020 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa type – first diploma course not provided – enrolled in different diploma course at different institution – enrolment in degree course cancelled – offer of enrolment at different university on successful completion of diploma – no evidence of academic progress – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Uzbekistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 1 March 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 27 April 2017 with an original expiry date of 16 September 2021 providing for approximately 4 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been 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.

5. On 6 February 2020, the applicant appeared at the Tribunal to give evidence and present arguments. He was assisted by an interpreter in the Russian and English languages, although the Tribunal notes that the applicant’s English was sufficiently good that the hearing was conducted in English. The applicant was represented by Mr Adam Watson.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

   Did the Applicant Breach Condition 8202?

8. Condition 8202(2)(b) of the Applicant’s visa requires that the Applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The Australian Qualifications Framework (‘AQF’) is the measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. AQF Level 1 (Certificate I) has the lowest complexity and AQF Level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training. ¬

9. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, several courses. These included a Certificate IV in Business, Diploma of Information Technology and a Bachelor of Information Technology. The Bachelor’s course sits at highest level of the three aforementioned courses which formed the basis of the Applicant’s student visa grant. Bachelor’s courses sit at AQF Level 7. As the delegate’s decision record further notes, on 7 March 2018 the Applicant’s enrolment in the Bachelor’s course was cancelled by the course provider. On 4 February 2019, the Applicant then enrolled in a Diploma of Project Management, through a different course provider, Greenwich English College Pty Ltd. Diploma level courses sit at AQF Level 6. On 15 July 2019 the applicant enrolled in a Diploma of Project Management at Australian Vocational Training Institute due to be completed on 12 January 2020.

10. The delegate’s findings in this respect were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

11. The PRISMS report indicated that during the period 7 March 2018 to 1 March 2019, the Applicant was in continuous breach of his student visa for not being enrolled in an AQF Level 7 course or higher. That amounts to more than 12 months and represents a significant proportion of the total visa grant period.

12. The Department of Home Affairs wrote to the Applicant by letter dated 5 February 2019 notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

13. The Applicant responded to the NOICC on 12 February 2019. He did not dispute that he had breached condition 8202 of his visa.

14. In his evidence before the Tribunal, the applicant confirmed that he had been in breach of his visa during the relevant period.

15. Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

    Consideration of the Discretion to Cancel the Visa

16. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

17. The applicant appeared before the Tribunal on 6 February 2020. This was the fourth scheduled hearing, the first two hearings postponed at the request of the applicant and the third hearing postponed due to scheduling issues at the Tribunal.

18. In his application for an adjournment made on 13 December 2019, the applicant had requested an adjournment to a date after 15 January 2020 to enable him to call evidence from “former training providers, current training providers and Macquarie University.” This adjournment was granted, however the Tribunal notes that at the hearing on 6 February 2020, the only witness giving evidence to the Tribunal was the applicant.

19. At the hearing, the applicant’s position was that he had arrived in Australia in 2017 and commenced studying in accordance with the terms of his student visa. He successfully completed a Certificate IV in in Business and had intended to study a Diploma of Information Technology at Martin College.

20. He stated that in early 2018 he was advised by Martin College that it would no longer be providing the Diploma of Information Technology and the course would not commence as scheduled. This led him to seek alternative enrolment in a different course. He enrolled in the Diploma of Project Management and enrolling in the Diploma course at a different Institution led to his enrolment in the Bachelor course being cancelled. He said that he had always wished to study at the Bachelor’s level and that he did not realise that enrolling in the lower level course would affect his visa.

21. At the hearing, the applicant produced a Confirmation of Enrolment from the Australian Vocational Training Institute commencing on 15 July 2019 and due for completion on 12 January 2020. He also produced a letter of offer from University of Technology in Sydney that set out an offer of enrolment in a Bachelor of Science in Information Technology upon successful completion of the Diploma of Project Management and evidence of a release from Charles Sturt University.

22. The applicant’s stated evidence at the hearing was that he had completed all the subjects in the Diploma of Project Management and was awaiting receipt of his academic transcript and Certificate from the College. He said that he intended to take up the offer from UTS upon the receipt of his certificate and the finalisation of his application. He said that he anticipated being able to commence the course in late February or, depending on the timing of the Tribunal’s decision, in May 2020.

23. On the face of it, the applicant appeared to have done what a student on a student visa was supposed to do, that is study in approved courses and progress academically. In these circumstances the Tribunal was prepared to consider the prospect that the applicant had lost his visa in circumstances beyond his control and was likely to continue to study in Australia at the UTS.

24. However, the Tribunal was concerned that the applicant was not able to provide any actual evidence in relation to his stated academic progress. At the conclusion of the hearing, the Tribunal ordered that the applicant have additional time to provide further evidence in relation to his studies in the Diploma of Project Management course. The Tribunal anticipated that based on his evidence, the applicant ought to be in a position to readily provide the Tribunal with a letter or statement from the education provider to confirm his progress in the Diploma of Project Management.

25. The applicant’s representative subsequently wrote to the Tribunal seeking an extension of time to provide further information and such request was granted.

26. Then, on 21 February 2020, the Tribunal received further communication from the applicant’s representative. Because of the unusual nature of the correspondence, I transcribe the email in its entirety:

    ”As you are aware, I have been assisting Mr. Otabek (Akhmedov) in his application for a visa.

    I unfortunately have to inform you that he has not been truthful with either yourself or with his briefing to me. Mr. Otabek told us both, that he was studying for a Certificate in Project Management at the Australian Vocational Training Institute Pty Ltd in Sydney. I have checked with them, and that while he has paid the course fees he has not attended one class. I have told him that this is unacceptable behaviour and that I was duty bound to advise the Tribunal straight away.

    I asked him why he had not attended classes and he replied that he was too busy to attend because he was working 88 hours per week.

    The bottom line here is that he did not come here to study but to work, and he has demonstrated that he simply will not do the right thing by our laws. I was astounded to find out that he offered the school a large sum of money to pass hi. The School showed me his attendance record and it showed that he had not gone to one class.

    I am very disappointed in his and I leave the question of his visa application to the Tribunal who I am sure will make the appropriate decision. Be assured I have tried to reason with him but everything I tell him falls on deaf ears. It is now my opinion, for what it’s worth, that his visa application 1904991 should be withdrawn and any desire he has to come to this country be denied.”

27. In circumstances in which the applicant’s representative has raised these matters with the Tribunal rather than the applicant himself, I do not consider the application “withdrawn” and I have proceeded to determine the matter on the merits.

28. I do not place any weight in the statements of the applicant’s representative in determining the application. I regard them as mere assertions that have not been put to the applicant and those matters are not necessarily relevant to the application.

29. However, the reality is that at the hearing of his application, it was made clear to the applicant that he needed to demonstrate that he had made academic progress in respect of his Diploma in Project Management in order for the application to succeed. This was so because the applicant’s offer from UTS was predicated upon the successful completion of the Diploma course and the Tribunal considered that it was essential to the applicant’s claim that he was in Australia for the purpose of study that he was able to demonstrate academic progress and an ability to commence studying at the higher level Bachelor’s course. For this reason, he was given time to file evidence in relation to his academic progress. He has failed to do so and the Tribunal regards his failure to provide evidence in support of his claims, in this context, as fatal to the application.

30. Without any evidence to the contrary, the Tribunal finds that the applicant has been unable to demonstrate that he was in Australia for the purpose of studying. Whilst he may have arrived in Australia with the intention of studying, it is apparent that this has not been his purpose since for some time and continues to be the case.

31. The Tribunal acknowledges the Applicant’s explanation as summarised above. However, his explanation does not amount to a satisfactory excuse for breaching his visa. It is not uncommon for a student visa holder to face issues such as the course provider changing course requirements or intending to cease offering certain courses. However, such difficulties do not constitute a satisfactory excuse to de-prioritise the obligation to comply with essential conditions of the student visa. The visa holder must adapt to such situations while continuing to abide by the law. That means they must continue to remain enrolled and study in a course which is at the same AQF Level as the course that formed the basis of the original visa grant.

32. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he did not understand the requirements of his visa, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose not to comply with an essential visa condition.

33. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will be lost. He stated that his family in Uzbekistan have expectations of him successfully obtaining an Australian qualification. A decision to cancel his visa will create significant disappointment for him and his family. He says he will suffer financially due to lost course fees he has already paid. This may be the case, but ultimately the Tribunal considers the applicant’s stated hardship does not constitute a significant level of hardship. The Tribunal gives some limited weight towards not cancelling the visa based on hardship.

34. The Tribunal notes that if the visa is cancelled, the Applicant may 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. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

35. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

36. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Uzbekistan and can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

37. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

38. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

    DECISION

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

    D Triaca
    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.