Anwar (Migration)

Anwar (Migration) [2022] AATA 2194 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Awais Anwar
CASE NUMBER:  2204250
HOME AFFAIRS REFERENCE(S):          BCC2018/2390996
MEMBER:Noelle Hossen
DATE:30 June 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 June 2022 at 3:55pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course – applicant ceased enrolment – applicant in Immigration detention – financial hardship – applicant changed to vocational course – several course enrolments cancelled – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 October 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not appear to comply with Condition9202(2 (b) because he did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was 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.
The applicant appeared before the Tribunal on 2 June 2022 to give evidence and present arguments.
The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain when the first named applicant was enrolled in a registered course.
According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.
The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as of 2 June 2022 being the date of the search. The records showed that the last course that the applicant was enrolled in was a Diploma of Business which he should have completed between the 9/7/2018 to the 7/7/2019 being a Diploma of Business.

8. On the 8 June 2022 the Tribunal sent the following s.359A letter to the applicant:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study and that most of the Courses that you were enrolled in were cancelled.

The applicant was given until the 22 June 2022 to comment on or respond to the information.
On 22 June 2022 the applicant responded
“I have been in Immigration detention since May 2020. Therefore, I have not been able to continue my studies. I was a genuine student, but I hit a rough patch. My family stopped supporting me financially and I had to pay my tuition fees myself.
Also, I had no relatives in Australia which made it very hard for me to survive here. After living 2 years in confinement with killers and all sorts of criminals I have realised the importance of education coming to Australia to study was the best thing that happened in my life and I didn’t appreciate it which resulted in my visa being cancelled. I was not faithful to the obligations of my visa.”
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time 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).
The applicant’s visa was granted on the 3 March 2017 in relation to the following registered courses: Bachelor of Information Technology at Edith Cowan University and Diploma of Science (computing IT) at Edith Cowan University.
The highest Confirmation of Enrolment in relation to which the visa was granted would provide a Level 7 bachelor’s degree qualification from the Australian Qualifications Framework. The PRISMS records indicate that the course was cancelled on the 12 July 2017 in the Bachelor Course.
On the 14 June 2018 he obtained enrolment in Diploma of Business through Yes college. This course was subsequently cancelled as well.
Based on the information, it appears he had not complied with Condition 8202(2)(b) because he had not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(b).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers.
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:
The applicant was granted a Student Visa to study in Australia. The applicant did not complete any of the courses that he enrolled in. The Tribunal did a PRISMS search and provided a copy to the applicant to respond within 14 days pursuant to Section 359A. The applicant did not address in detail the reasons for his noncompliance with his Visa obligations save and except that in his statement in response he said:” I was a genuine student, but I hit a rough patch. I was not faithful to my Visa obligations admitting that he did not comply with the purpose of the visa. “The Tribunal is satisfied that the applicant did not comply with his obligations.
He said that his family had sent him away to Australia and that he had been an angry young man as he had been abused as a child.
He also said that he was bisexual and that he did not have a place in his society in his home country as it is not in keeping with his faith and that of his family.
He did not go into detail and the Tribunal does not have enough information to decide as to whether he had a compelling need to travel or remain in Australia for those reasons.
He said that he has been in detention since May 2020 and that he could not study as a result of the detention.
The Tribunal notes that the applicant did not complete any courses in their entirety since 2017 and therefore the Tribunal places significant weight against the applicant’s case as a result of those facts.
the extent of compliance with visa conditions:
The Tribunal notes that the applicant readily admitted in his response that he was not faithful to his visa obligations.
Most of the Courses that the applicant enrolled in were cancelled.
The Tribunal accepts that he may have suffered some financial hardship and could not meet the costs of his Courses for the year that his father had open heart surgery but, he has been in Australia for 5 years in total of which he has spent 2 years in detention so he had ample time to sort out his financial difficulties or return to his home country.
The Tribunal places weight against the applicant’s case because of his noncompliance.
degree of hardship that may be caused (financial, psychological, emotional or other hardship):
The applicant did not provide any evidence to the Tribunal about the hardshis that he may face financially if he is required to return to his home country.
He did say that he may suffer psychological and emotional hardship because he is bisexual, and his faith does not accept his sexuality.
The Tribunal did try to find out whether he would be happier in Pakistan, but he said that his family had arranged for him to come to Australia to study as he had been an angry young man as he had been abused as a child. He did not provide any details or any further evidence.
The Tribunal asked him whether he would prefer to return to his home country as he had said that he had started to mix with a bad crowd in Perth and was smoking cannabis and taking sleeping tablets prior to his detention in May 2020. However, he said that returning to his home country was not a very good option and the Tribunal does accept that he may face some hardship if he returned to his home country and places some weight in favour of the applicant’s case on those facts.
circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:
There is no evidence that the ground for cancellation arose because of factors outside the applicant’s control. The Tribunal accepts that his father’s illness would have affected his ability to meet the cost of the Courses for at least a year, but the applicant was not complying with his visa obligations for a period longer than that and did not provide any evidence regarding his financial circumstances. The applicant was not complying with his visa obligations before he was held in detention and the Tribunal has taken those facts into consideration.
past and present behaviour of the visa holder towards the department:
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations..
whether there would be consequential cancellations under s 140:
There is no one attached to his Visa and as such the Tribunal gives this factor no weight in its consideration.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention and whether any international obligations would be breached:
The applicant is in detention and has been held in detention since May 2020.The applicant is awaiting a trial to be held in February 2023 regarding criminal charges. The Tribunal does not have any evidence regarding those charges and has not taken those facts into consideration.
Should the Visa be cancelled, the applicant is likely to be subject to a bar which excludes him from applying for a Visa for 3 years.
The applicant has identified no reason which would prevent him from returning to his home country, save that he stated that he is bisexual, however no evidence was supplied to the Tribunal of what that entails if he returned to his home country to his family home.
if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia:
The Visa was not a permanent visa, so this factor has no relevance to the case.
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.
Noelle Hossen
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.

[2022] AATA 2194

30 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction