ARFAN (Migration)

[2020] AATA 195

ARFAN (Migration) [2020] AATA 195 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZAHID ARFAN

CASE NUMBER:  1822932

HOME AFFAIRS REFERENCE(S):           BCC2018/1316915

MEMBER:Brian Camilleri

DATE:4 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel ZAHID ARFAN’s Subclass 573 Higher Education Sector visa.

Statement made on 04 February 2020 at 3:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – responsibility of visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116 (b) on the basis that the visa holder did not comply with the primary criterion attached to his TU-573 Higher Education Sector 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.

3. The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted in the English language without the assistance of an interpreter as the applicant spoke fluent English.

4. The applicant was not represented in relation to the review by any registered migration agent.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116 (b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist - s.116 (1) (b)? Information considered

7. The applicant's TU-573 Higher Education Sector visa was granted to him on the basis of his declaration that his intention was to study a higher education level course at an education provider that is eligible under the streamlined student visa processing arrangements. The subclass 573 visa was granted on the basis that there a lower immigration risk.

8. Section116 (1) (b) provides that the Minister may cancel a visa if satisfied that the holder does not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant meets cl.573.231 as an eligible higher degree student who has a confirmation of enrolment in each course of study he is undertaking.

11. As an ‘eligible higher degree student’ he is also required to be enrolled in a principal course with an ‘eligible education provider’ for his bachelor’s degree, Master’s degree by coursework or (for visa applications made on or after 23 November 2014) an advanced diploma in the higher education sector: cl.573.111.

12. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/007.

13. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

1. In the present case, the criterion which it is alleged the applicant did not continue to satisfy was to maintain enrolment as a higher degree student while he held the visa [It has been held that this requires the applicant to maintain appropriate enrolment while they hold the visa: Singh v MIBP [2016] FCA 679].

2. A copy of the Provider Registration and International Student Management Systems (PRISMS) record was provided to the applicant at the time of the hearing and his attention referred to each entry on it.

3. On 14/12/2015, the applicant completed his course of study in “English for Academic Study at Queensland International Business Academy of Sydney (QIBA Pty Ltd) with a course period from 14/12/2015 to 04/03/2016. The applicant completed this course on 04/03/2016 and it is recorded as “Finished” on the PRISMS record.

4. On 14/03/2016, the applicant continued his studies and commenced the Bachelor of Business (Accounting) at King's Own Institute (Australian Institute of Business and Management Pty Ltd) with a course period to run from 14/03/2016 to 11/03/2019. This was in compliance with the requirements of his visa. However, his confirmation of enrolment (CoE) was cancelled on 14/09/2016 by the education provider citing “Cessation of studies”. The applicant does not dispute this.

5. On 21/09/2016, the applicant then sought and obtained an enrolment in a course styled Diploma of Accounting [090523E] at Sydney Metro College Pty Ltd, which course commenced on 26/09/2016 and finished on 24/09/2017. He completed this course. When he enrolled in this course (which did not comply with the requirements of his higher education visa) he did not inform the department or seek alteration of his visa conditions to ensure continued compliance with his current visa terms.

6. Thereafter, there is no information available to indicate that he was enrolled in any registered course of study from 25/09/2017 to 11/06/2018 and for that period he remained within Australia without a valid CoE required by his visa. The applicant does not dispute this.

7. The Tribunal notes from the record of entries  in PRISM in that he enrolled in the same course (Diploma of Accounting [090523E] a second time for the period from 18/05/2018 to 17/03/2019 (also designated as “Cancelled”).

8. There appears no satisfactory explanation for this second subsequent enrolment other than that in some way the applicant was hoping the second CoE relevant to this enrolment would somehow satisfy the requirements of Condition 8516 attached to the visa.

9. At the date of hearing the applicant held no relevant certificate of enrolment for any course compliant with the terms of the visa in the higher education sector.

10. The applicant was and is no longer enrolled in a bachelor's degree or master's degree course and he is not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

11. Based on this information, the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such, the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

12. The Tribunal is satisfied that the applicant is no longer an eligible higher degree student as defined by 573.111 of the Migration Regulations 1994 and no longer complies with primary criteria set out in subclause 573.231 or 573.223(1A) of Schedule 2 of the Regulations.

13. As the applicant did not comply with condition 8516 then his visa may be cancelled under paragraph 116(1)(b) of the Act which provides in s116(1) that subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (b) its holder has not complied with a condition of the visa;

14. Based on the information the Tribunal is satisfied that grounds exist for cancellation of the applicant's visa under paragraph(s) s116 (1) (b) of the Act.

    DECISION WHETHER TO CANCEL

15. By not obtaining enrolment in a higher education level course and by enrolling in courses to study at the Vocational Education and Training (VET) Sector Level, the applicant has demonstrated an intention not to study a Higher Education level course in Australia, as required by his current student visa.

16. The Tribunal notes that in his evidence before it (and also in response to the Department’s Notice of Intention to Consider Cancellation (NOICC)), the applicant had stated that his intention was still to study and complete a degree in Business after completing the course in Diploma of Accounting. The Tribunal notes his various enrolments in the Diploma of Accounting course. However, he has not provided evidence to indicate his interest in pursuing further studies in Business.

17. The Tribunal considers that the applicant has not complied with condition 8516, as he has not been enrolled in a bachelor's or master's degree course, nor a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. Therefore the applicant has not continued to be a person who meets the provisions of subclauses 573.231 or 573.223(1A).

18. The fact that he does not hold a valid certificate of enrolment in a course at the requisite level indicates that he continues fail to comply with the condition 8516 as he does not to meet sub clauses 573.231 or 573.223(1A).

19. The applicant has significantly changed his educational pathways without notification to the department in relation to his visa which demonstrates that he does not have an intention to study at the higher degree level.

20. The Tribunal is satisfied that the applicant is no longer an eligible higher degree student as defined by 573.111 of the Migration Regulations 1994 and no longer satisfies the primary criteria of subclass use 573:723(1A) of Schedule 2 of the Regulations

    Assessment of relevant factors

21. Taking into account the material listed under 'Information considered' above the Tribunal has also made the following assessment in regard to several relevant factors.

22. During the application process for the student visa, the applicant stated that the intended purpose of travel to was to stay and study in Australia. He claims he came to Australia on a student visa to study Bachelor of Business (Accounting) at Australian Institute of Business and Management Pty in 2016.

23. He was granted a student visa on the basis that he be enrolled in a full-time registered course(s) of study. He was/is required to have current or future enrolment in a course that meets the requirements for which the subclass 573 student visa was granted. He does not have this at the time of hearing before the Tribunal and has not held such an enrolment since 14/09/2016 as outlined above.

24. Although the applicant was unable to complete the course requirements for which the subclass 573 student visa was granted, he was still required to have current or future enrolment in a course that meets 573.231 or 573.223(1A).If the applicant was unable to study at the level for which he was approved, he was required to change visa subclasses to reflect the level of study he was completing.

25. The applicant has not provided any evidence to show any valid enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas.

26. The Tribunal gives this consideration weight in favour of cancellation.

    The extent of the applicant's non-compliance with any conditions subject to which the applicant visa was granted

27. The applicant has not complied with condition 8516 of his student visa when he failed to maintain enrolment in a course of study that is a principal course of a type specified for their student visa, by the Minister.

28. The applicant has stated before the Tribunal that he aims to enrol in a bachelor’s course after completion of the Diploma of Accounting. But discussed above, the applicant has not presented evidence to show his intention to study a bachelor's degree course. In addition, information available before the Tribunal does not indicate that the applicant has enrolment in a registered course as the higher degree student.

29. The applicant has not provided any evidence to show any valid enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas.

30. The Tribunal gives this consideration weight in favour of cancellation.

    The circumstances in which the ground for cancellation arose

31. The Applicant was enrolled for some periods in a Training (VET) Sector course but not in Higher Education Sector Level course indicating he had not complied with Condition 8516. The principal course, Bachelor of Business' (Accounting) CoE was cancelled on 14/09/2016 citing Cessation of studies and there is no evidence that the applicant has either re-enrolled in the principal course of study or sought to change visa subclasses to reflect the level of study the was actually (attempting to complete).

32. The Tribunal gives this consideration weight in favour of cancellation.

    The degree of hardship that may be caused to the applicant or the applicant's family members

33. The applicant did not provide any information relevant to this consideration and the Tribunal is not aware of any specific^.hardship that may be caused to the applicant or his family members as a result of the cancellation of his higher education student visa.

34. There is evidence that the applicant was experiencing difficulty while studying his Bachelor of Business (Accounting). He elected to abandon those studies and study instead a Diploma of Accounting (with the intention to better prepare himself academically before further pursuing the bachelor degree program in Accounting).When doing so he did not inform the department or seek an alteration of his visa status. He says that he adopted this change of course without knowing he was thereby breaching his visa conditions. Therefore, these factors are given minimal weight in the applicant favour.

35. There is no evidence that he sought assistance from his education provider to address these issues or access any services provided to students to assist them. The Tribunal gives this consideration weight in favour of cancellation.

36. In addition, it is the responsibility of the student to contact the department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change. According to departmental records, at no time did the applicant contact the department for this purpose. The Tribunal gives this consideration weight in favour of cancellation.

37. There is no evidence that the applicant has any family members in Australia who will be negatively impacted by the cancellation of the visa. This factor is given no weight either in favour of the applicant or in favour of cancellation.

    The applicant's past and present behaviour towards the department

38. There is no information before the Tribunal to indicate any specific matters of relevance regarding the applicant's behaviour towards the department. The Tribunal gives this factor little weight in the applicant's favour.

    - Whether there are persons in Australia whose visas would, or may, be cancelled under s140

    The Tribunal is not aware of a person in Australia whose visa would be cancelled under s140 as a consequence of the cancellation of the applicant’s visa and hence gives no weight to this consideration in the applicant's favour.

    Legal consequences of a decision to cancel the visa

39. If the applicant's visa is cancelled, then he will thereby become an unlawful non-citizen. As an unlawful non-citizen that person may be liable for detention under Section 189 and removal under Section 198 of the Act if they do not voluntarily depart Australia.

40. The Tribunal notes that, if it decides to cancel the applicant's visa under these grounds, he will not incur any penalty under Public Interest Criterion 4013 to prevent him from applying from overseas for a new visa. If the applicant does intend to return to Australia, he can apply for a visa in line with his new purpose for returning to Australia.

41. If the applicant's visa is cancelled, he will be subject to Section 48 of the Act which means he will have limited options to apply for further visas in Australia and may be required to return to their country of origin. These are the intended consequences of the legislation when a visa is cancelled under these grounds

42. The Tribunal gives these considerations minimal weight in the applicant's favour because:

    Whether Australia has international obligations that would or may be breached

43. Cancellation of the visa under consideration does not raise or address any matters relating to Australia’s international obligations that may be relevant to the cancellation. The Tribunal not aware of any international obligations that may be breached as a result of the cancellation of this visa. This gives no weight in the applicant’s favour.

    Other relevant factors assessed:

44. The Tribunal is not aware of any other relevant factors in relation to the cancellation of the visa.

    PART E: DECISION

45. After careful consideration of all information before me, I am satisfied there is a ground for cancelling the applicant's Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa and the Tribunal is satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    Decision

47. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Brian Camilleri

    Member