Ali (Migration) - [2023] AATA 3281

Ali (Migration) [2023] AATA 3281 (30 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Babar Ali
CASE NUMBER:  2212736
HOME AFFAIRS REFERENCE(S):          BCC2022/1846771
MEMBER:Christine Kannis
DATE:30 September 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 September 2023 at 1:39pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – study difficulties, two completed courses, multiple enrolments and cancellations and changes of subject areas and course providers – COVID restrictions – father’s death and mother’s financial support – debt collection for unpaid fees – no approach to department – re-enrolment and continuing study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 August 2022, 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 12 September 2023 to give evidence and present arguments.
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
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 (Cth) (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?
On 3 February 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the 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)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali (Migration)

Details

AGLC: Ali (Migration) [2023] AATA 3281
Case: [2023] AATA 3281
Decision Date: 30 September 2023

CaseChat Overview and Summary

This matter concerned an appeal by a student visa holder against the cancellation of their Subclass 500 (Student) visa. The applicant had been granted the visa on 3 February 2021, with condition 8202 of the Migration Regulations 1994 (Cth) attached. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation on the basis that the applicant had ceased to be enrolled in a registered course from 3 March 2021, thereby failing to comply with condition 8202(2)(a). The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had complied with condition 8202 of their student visa, which mandates enrolment in a full-time registered course and maintenance of that enrolment. The Tribunal considered evidence from the Provider Registration and International Students Management System (PRISMS), which indicated the applicant was not enrolled in a registered course from 3 March 2021. The applicant contended that various difficulties, including study challenges, personal issues related to the COVID-19 pandemic, the death of their father, financial pressures, and issues with education providers, had led to their non-compliance.

The Tribunal found that the applicant had breached condition 8202(2)(a) as they were not enrolled in a full-time registered course from 3 March 2021. While acknowledging the applicant's stated difficulties, including personal circumstances and the complexities of changing course providers, the Tribunal noted that the applicant had not approached the Department for assistance. Despite the applicant's subsequent re-enrolment in a new course, the Tribunal concluded that, on balance, the circumstances warranted the affirmation of the visa cancellation decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 (Cth) (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? On 3 February 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the 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)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 March 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 March 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 5 July 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 March 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 18 July 2022, the applicant responded to the NOICC and provided the following information in a written submission from his representative:·The applicant arrived on a Student visa to study a Diploma of Computing leading to a Bachelor of Computing at Deakin College. He commenced the diploma course on 27 July 2017 but faced difficulties due to the variation in education standards between Pakistan and Australia. He tried to get help and complete his education but he was not able to perform well in his course.·The applicant realised his interest in automotive technology and memories of trying to understand engines in his childhood and wanted to pursue his education related to automotive technology. He was admitted to Barkly International College Pty Ltd (Barkly) but faced some issues related to the students from whom he was getting mental pressure and this made him change to Ashton College. His student visa was granted on 3 February 2021 to study at Ashton College. After a while at Ashton College, he was not satisfied with their education methods and he preferred to study at Barkly as he was facing issues related to teaching methods and staff in understanding the concept that he was taught. He decided to complete his course at Ashton College as he did not want to waste completing his education. ·He faced personal problems during his course. It was during the COVID-19 pandemic period and he faced serious circumstances while living in Australia by himself. He had to stay mentally stable as his family lives in Pakistan.·The applicant lost his father a few years ago which impacted his mental health while he stayed far from his family. His father was the only earning family member and his mother has been struggling and arranging financial support for the applicant. His father had high hopes for him to complete an education in Australia and that is why his mother has been sponsoring his expenses alongside her own medical expenses.·If the applicant’s visa is cancelled, the outcome might affect his family members on a huge level.·Even after all the culture shock and mental stress, the applicant tried to continue his study and tried to get admission to different colleges and finally now has an opportunity to study, which shows the dedication that he wants to complete his education.·These circumstances put the applicant in mentally stressful situations which affected his education, due to Ashton College cancelling his CoE without giving him a chance. He tried to enrol in a registered course after Ashton College cancelled his CoE. He tried to enrol at different colleges like Barkly and Acumen Institute. Other colleges refused to enrol him as they required a Release letter from Ashton College. The applicant attempted to get the Release letter but Ashton College refused. ·After several attempts, the applicant received a CoE from Barkly. He is currently enrolled at Barkly in a Certificate III in Light Vehicle Mechanical Technology commencing on 15 December 2022. He decided Barkly would be the most appropriate for him due to a range of factors such as quality of education, feedback from his peers, cost and reputation of the provider.·The applicant also wanted the unique experience of living in one of the major cities of Australia prior to returning to his home country. He plans to continue his education at Barkly if the Department provides the opportunity to do so. He has taken all steps to maintain his visa conditions, however, due to an error in judgement he may pay the ultimate price.