Alam (Migration)

[2020] AATA 3253

Alam (Migration) [2020] AATA 3253 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Zahed Alam

CASE NUMBER:  1825827

HOME AFFAIRS REFERENCE(S):          BCC2018/1903513

MEMBER:L. Symons

DATE:25 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2020 at 11:25am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a full time registered course at level– breached condition 8202– lower level of course –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116 ,359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 August 2018 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).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study, at the same level as or higher level than the registered course in relation to which his visa was granted, since 11 July 2017. On 5 September 2018, the applicant applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.

4. 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 AND FINDINGS

5. 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 breach Condition 8202?

6. 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 full-time registered course: 8202(2)(a); and

   ·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; 8202(2)(b); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7. In the present case, the applicant was granted a Student visa on 6 September 2017. This visa was subject to a number of conditions including condition 8202. On 7 August 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had not complied with condition 8202(2)(b) of his Student visa . He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

8. In his response dated 15 August 2018, the applicant provided reasons why his visa should not be cancelled. The delegate cancelled his Student visa on 28 August 2018.

9. The records of the Department of Immigration (the Department) indicate that the applicant was issued a subclass 500 Student visa on 6 September 2017 to undertake a Bachelor’s degree. That visa was subject to a number of conditions including condition 8202. The records of the Department of Education indicate that he was enrolled in a Bachelor of Business from 27 March 2017 to 22 March 2020. His enrolment in that course was cancelled on 11 July 2017 because of non-payment of fees. He then enrolled in a Bachelor of Business from 26 June 2017 to 21 June 2020. His enrolment in that course was cancelled on 9 October 2017 because he transferred to another education provider. He then enrolled in a Certificate IV in Marketing and Communication from 7 May 2018 to 5 May 2019.

10. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that the Certificate IV was way below the required Bachelor’s degree level of study for which he was granted the Student visa. The Tribunal noted that it may find that he had breached condition 8202(2)(b) of his Student visa. He declined to respond.

11. The Tribunal informed him that the Department allege that he breached condition 8202(2)(b) of his Student visa because he was granted the Student visa to study a Bachelor degree and he was not enrolled in a registered course 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 for which the Student visa was granted to him. He responded that he agreed with that.

12. On the evidence before it, the Tribunal finds that the applicant has not complied with condition 8202(2)(b) of his Student visa.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

14. The applicant gave evidence that the purpose for which he travelled to Australia was to obtain a Bachelor’s degree. He stated that he was not studying at the time of the hearing.

15. The Tribunal asked him whether there was any need for him to remain in Australia. He responded that he thought of returning to his studies, but his Student visa was cancelled. He stated that he thought that he would get a telephone call (from the Tribunal) in four or five months and could then enrol in a Bachelor’s degree and study. He stated that he was waiting and did not apply for a Confirmation of Enrolment (COE). He stated that he is the eldest and his (younger) brother has almost finishing his degree. He stated that it will be shameful for him and his parents. He stated that he can finish his degree and return to his country. He stated that he is thinking about doing marketing and communication. He stated that at his age it would not be possible for him to undertake a degree in Bangladesh. He stated that if his Student visa is reinstated, he will complete his degree and return to his country.

16. The records of the Department indicate that the applicant was enrolled in a total of twenty-four courses in Australia. The only courses that he has completed are a Certificate IV in Information Technology Networking in June 2014, a Certificate IV in Accounting in January 2016 and a Diploma of Accounting in September 2016. Ten of his COEs were cancelled  for non-commencement of studies. Two of his COEs were cancelled because he transferred to another education provider. Three of his COEs were cancelled because he notified his education provider of cessation of studies and one COE was cancelled because he did not pay his fees. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he came here for the purpose of studying but that is no longer his purpose, that he has not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled.

17. The applicant responded that he understood what the Tribunal said. He stated that, if he gets the chance, he would like to complete his degree and go back. He stated that he was relying on his (education) agent. He stated that he came here to study. He stated that the situation was that he was failing the subjects and decided to change the course. He stated that he would be happy to finish the degree and return to Bangladesh. 

18. The evidence before the Tribunal indicates that the applicant has a poor history as a student in Australia. Whilst he has completed two Certificate IV courses and a Diploma, these are at an AFQ level 4 and he has not completed a Bachelor’s degree (at an AQF level 7) for which he was granted the subclass 500 Student visa. There is no evidence before the Tribunal to indicate that he is currently enrolled in a registered course of study. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in his favour.   

    The extent of compliance with visa conditions

19. The applicant was granted the subclass 500 Student visa on 6 September 2017 for the purpose of completing a Bachelor’s degree. He has not been enrolled in a registered course that, once completed, would provide him with a Bachelor’s degree or a higher degree since 9 October 2017. This was a substantial period of time during which he was in breach of condition 8202(2)(b) of his Student visa.

20. The Tribunal asked the applicant whether he had breached any other condition of his Student visa. He responded that he did not. He stated that he asked whether he could work and was told that he could. He stated that he was nervous for a couple of months. His evidence to the Tribunal is that, since coming to Australia, he has worked as a kitchen hand at two different restaurants and thereafter as an Uber driver. He stated that he has been an Uber driver for about one year and seven months. He stated that his parents provided him with his tuition fees and he pays for his cost of living.   

21. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.     

    Degree of hardship that may be caused

22. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that he would have to return to Bangladesh and it would be shameful for him as he did not complete his degree. He stated that his brother and sister are finishing their studies. He stated that his career and his life would be destroyed. He stated that an Australian degree is good and valuable. He stated that it is not easy to go back to university in Bangladesh and he does not want to lose his career.

23. The Tribunal accepts that if the Student visa is cancelled it would cause the applicant  considerable hardship. The Tribunal gives this consideration weight in his favour.

    Circumstances in which the ground for cancellation arose

24. In his response to the NOITCC, the applicant stated that he enrolled in a Diploma of Accounting followed by a Bachelor of Accounting degree. He stated that when he started the Bachelor of Accounting degree, it was difficult for him and he realised that it was not what he wanted to do. He stated that he discussed with his (education) agent an easier course he could undertake. He stated that he informed his (education) agent that he wanted to take over his father’s business and it was suggested to him that he study business. He stated that he decided to start with a Certificate IV (in Business), followed by a Diploma and then a Bachelor’s degree. He stated that he started studying a Certificate IV in Marketing and Communications.

25. The applicant stated in his response to the NOITCC, that he then received the NOITCC. He stated that he was unaware of the changes under subclass 500 Student visa and relied on his education agent to keep him informed. He stated that he had no idea he was breaching a condition of his Student visa by studying the Certificate IV course. He requested that his visa not be cancelled and stated that he would enrol in a Bachelor’s degree once he completed his Certificate IV course. 

26. During the hearing, the applicant reiterated the above. He stated that he relied on the advice given to him by his education agent and was given bad advice. He stated that when he received the NOITCC he contacted his education agent. He stated that his education agent told him to send him some money and he would get him a COE for a Bachelor’s degree. He stated that his education agent has also kept his fees for the second semester of his Certificate IV course (which he did not do). He stated that he is suffering today because of the advice given to him by his education agent. He stated that he completely relied on his education agent and that was his biggest mistake.

27. Whilst the Tribunal has some sympathy for the applicant, it was his responsibility to be aware of the conditions of his Student visa and to ensure that he complied with those conditions. He has been living in Australia since 2013 and has renewed his Student visa twice whilst living in Australia. He should therefore be familiar with the process.

28. The Tribunal gives this consideration little weight in his favour.

    Past and present behaviour of the visa holder towards the Department

29. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.  

30. Whether there would be consequential cancellations under s.140 of the Act

31. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

32. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

33. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

34. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

    Australia’s international obligations

35. The Tribunal asked the applicant whether there was any reason why he could not return to Bangladesh. He responded that he can return to Bangladesh. He stated that he has a younger brother and sister at university. He stated that without a degree it would be difficult for him to get a job.

36. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

37. The Tribunal raised as an issue with the applicant its doubts that he had the necessary English language skills to be able to undertake a Bachelor’s degree in English in Australia. He responded that he would be happy if he is able to complete a Diploma or an Advanced Diploma in Marketing and Communication.

38. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

39. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons
    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.