Islam (Migration)

[2019] AATA 5045

Islam (Migration) [2019] AATA 5045 (14 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nazrul Islam

CASE NUMBER:  1903408

HOME AFFAIRS REFERENCE(S):          BCC2018/5378594

MEMBER:Dominic Triaca

DATE:14 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2019 at 10:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – non-enrolment in registered course – factors for and against cancellation – deaths of family members in home country affected study – working instead of studying – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, criterion 8202(2)(a)

CASE

Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act). The applicant is a citizen of Bangladesh.

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 12 November 2019 to give evidence and present arguments.

4. The Applicant’s student visa was granted on 3 November 2016 with an original expiry date of 16 August 2019, providing approximately for 2 years 8 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

5. The applicant is 26 years old and arrived in Australia in 2009. He studied and completed year 11 and 12 at Southern Cross High School. He has studied in Australia since and says he has studied a Diploma of Business Management.

6. The visa, the subject of this application, had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Bachelor of Accountancy. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 13 February 2018 to 6 February 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 11 months during which the Applicant was in continuous breach of the visa.

10. The delegate’s finding in this respect was 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’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database 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.

    [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

11. The applicant says he commenced studying the Bachelor of Accountancy in 2016 and had completed about 12 subjects at the time his enrolment was cancelled in February 2018. From that point, the Applicant remained in continuous breach of his visa by not being enrolled in any registered course of study. As the delegate’s decision record notes, the Applicant eventually enrolled in a Bachelor of Accounting course GCA on 6 February 2019 due to commence on 13 May 2019, following the Applicant receiving notice from the Department of Home Affairs (‘the Department’) advising of its intention to consider cancellation of his visa(‘the NOICC’). As the delegate further noted, such action on the Applicant’s part did not cure the situation as, under condition 8202, the Applicant is also obliged to maintain an ongoing enrolment as the enrolment created a study gap of a further 4 months.

12. The Department wrote to the Applicant on 23 January 2018, in the form of the NOICC.  That notice 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 provided a written response to the Department on 29 January 2018 and 6 February 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition. At the hearing before the Tribunal, the applicant also admitted in evidence that he was in breach of the condition 8202 for the period alleged by the delegate. He says that despite being enrolled to return to study in May 2019 at the time of the delegate’s decision, he did not return to study at all.

14. Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

18. At the hearing before the Tribunal, the Applicant stated that he passed 12 out of 24 units in his Bachelor of Accounting course at GCA. While the Applicant did not provide an academic record that could corroborate this evidence, ultimately the Tribunal accepted the evidence of the Applicant in this regard. Overall, his evidence was found to be truthful.

19. The applicant stated that he encountered a series of family issues in 2017 that led to him being unable to study. He says that his Uncle and Maternal Grandfather passed away in Bangladesh during this period and he was unable to concentrate on his studies as a result.

20. The Tribunal inquired as to whether he sought any medical treatment in relation to his inability to concentrate. He says that he did think about going to see a psychologist but he never did and he says that any mental health issues he may have had at the time have now resolved. On the Applicant’s evidence, a clinically diagnosable mental health condition was not affecting him and the evidence falls well short of establishing that he was ever prevented from studying by some underlying mental health concern.

21. The Tribunal accepts the truthfulness of the applicant’s evidence in relation to the family bereavement and acknowledges it. However, this explanation does not amount to a satisfactory explanation for breaching the visa for an extended period of time. It is not uncommon for a student visa holder to have to deal with the loss of a family member during their stay in Australia. However, such difficulties do not constitute a satisfactory excuse to de-prioritise the obligation to study during the time he was in continuous breach of the visa requirements. The Tribunal considers that difficulties such as the death of a family member are ordinary difficulties of life that many people suffer from. These matters do not relieve the applicant of the obligation to comply with the essential condition of the student visa. In the end, the applicant chose not to comply with an essential condition of his student visa for an extended period of time.

22. The Tribunal also notes the applicant’s evidence that he was not told by the College that his enrolment had been cancelled at the time. The Tribunal considers it unlikely that the College never informed him of the cancellation of his enrolment in 2018. In any event, the applicant accepted that he was aware he was in Australia on a student visa, it was a condition of his student visa to maintain enrolment, that it was his obligation to do so and that he continued to live in Australia, on a student visa, without undertaking any form of study for an extended period of time.

23. The applicant stated that he took steps to re-enrol in the Bachelor of Accountancy. It is apparent that these steps were not taken until he was in receipt of the NOICC and after he was in breach for a significant period of time. There is no evidence that the applicant attempted to re-enrol in study before February 2019, approaching 12 months after the cancellation of his CoE in February 2018.

24. The Applicant admitted that he was working during 2018, utilising the 20 hours per week that his student visa entitled him to. When his visa was cancelled, he lost his work rights and was unable to work for a period, however he subsequently made a successful application for work rights and since that time he says has worked approximately 40 hours per week at Hungry Jacks in Sydney. The Tribunal considers the applicant’s evidence was to the effect that he chose not to prioritise his studies. He was unable to provide any satisfactory explanation as to why he remained in continuous breach of his visa for at least eleven months and there is no evidence demonstrating to the Tribunal’s satisfaction that he made any meaningful attempt to re-enrol during his eleven months period of continuous breach.

25. The Tribunal considers, on the evidence before it, that the applicant prioritised work over study in 2018 and he continued to reap the benefits of Australia’s economy by working at relatively high wages (as compared to his home country), as he was entitled to do, for 20 hours per week. He chose to prioritise that work right entitlement, rather than the fundamental purpose for which the visa had been granted.

26. In the end, the Tribunal is left without any satisfactory explanation for the Applicant’s decision to continue to breach condition 8202 of his student visa. It seems to have been a deliberate decision on the part of the Applicant. He must now face the legal consequences for his actions. His situation has not arisen due to circumstances outside his control.

27. Compelling’ and ‘need’ are words of ordinary meaning, not defined in the PAM3 or s 116 of the Act. Crennan J (then sitting in the Federal Court) considered compelling to mean ‘forceful and therefore convincing’. [2] Need is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without.’[3] The Tribunal does not consider that the applicant has advanced any compelling need[4] to travel and stay in Australia.

    [2] Paduano at [37] – [39]

    [3] See Lord Neuberger of Abbotsbury in House of Lords decision, R, (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] WLR 1808 at [54]; Boettcher v Driscoll (2014) SASC 86 at 41 per David J

    [4] Compelling need, in the sense of the ordinary meaning of the words, as discussed by Crennan J in Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244

28. Whilst studying was the applicant’s purpose of being in Australia for a period of time, as evidenced by his previous study including schooling, it is clear that by February 2018 study was no longer the applicant’s purpose of residing in Australia and the Tribunal considers this remains the case in 2019.

29. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will not be met. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to Bangladesh without a Bachelor of Accountancy. He says he has concerns about finding work in Bangladesh and also the unstable political situation due to the current government, although he did not state any specific reason he would be personally affected. However, this concern must be tempered with the breach of the most fundamental condition of his visa that continued for a relatively lengthy period and the fact that he says he had previously studied and Secondary School and a Diploma Level course in Australia. Having considered the applicant’s evidence, I do not consider that he

30. 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.

31. 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.

32. 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 Bangladesh and holds a current passport for that country so 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.

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

34. The applicant is married. His wife is studying in Australia. He has a separate application for a Partner Combined (subclass 820/802) visa that is being processed. This does no effect the current application for review.

35. There do not appear to be any other relevant matters before the Tribunal.

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

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

    DECISION

38. 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 (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.