Ketu (Migration)

[2020] AATA 5276

Ketu (Migration) [2020] AATA 5276 (30 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ishmael Ketu

CASE NUMBER:  2001308

HOME AFFAIRS REFERENCE(S):          BCC2019/3284777

MEMBER:Wendy Banfield

DATE:30 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2020 at 3:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher-level course ceased – applicant changed to Vocational courses – late commencement of course – partner visa application – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 January 2020 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 did not comply with subclause (2)(b) of condition 8202 attached to his visa. The Student visa was granted in relation to the registered course Master of Commerce at University of New South Wales (UNSW) starting on 23 July 2018 and ending 15 January 2020, a Level 9 qualification from the Australian Qualifications Framework (AQF). At the time of cancellation, the highest enrolment the applicant held was for a Diploma of Leadership and Management at AQF Level 5. It was a requirement of the applicant’s Student visa that he maintain enrolment at the required level which was AQF Level 9.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

4. The applicant is a citizen of Ghana and is currently 30 years old. He came to Australia on 1 August 2018 to undertake a Master of Commerce at UNSW. The applicant held a Bachelor of Business Administration prior to enrolling in post graduate education. He began the course late, did not continue with his master’s degree and instead enrolled in a diploma level course. At the time of the Tribunal hearing, the applicant was enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis until 31 July 2022.

5. The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. 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

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 comply with Condition 8202?

9. 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, 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)

   ·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).

10. In the present case, the applicant’s visa was cancelled on the basis he did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

11. The evidence indicates the applicant discontinued his studies in a master’s degree, AQF level 9 which was the purpose of the visa grant. He enrolled in a diploma course the highest of which was AQF level 5 which does not meet the conditions of the student visa. In his response to the NOICC the applicant agreed there had been grounds to cancel the visa but because he had a letter of offer for a master’s degree, it was submitted the breach of visa conditions had been rectified. This is not the case because the offer was conditional and did not constitute enrolment in a master’s course. The applicant claimed he was unable to enrol because his original visa was about to cease. While this may have been the case, on the evidence before the Tribunal, the applicant had previously failed to maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the 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

12. 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

13. The applicant arrived in Australia on 1 August 2018 and was enrolled to study a master’s degree at UNSW. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

14. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant stated he now wants to study auto-mechanics because he has always loved cars. He claimed he wants to work in the auto industry and then start his own business. The applicant declared he had planned to study Information Technology, but it was too expensive. The Tribunal put to the applicant that he already had a bachelor’s degree, but he said he wanted to study something more practical. The Tribunal notes the applicant was offered enrolment in Certificate III and IV courses on 31 July 2020. The Tribunal finds a recent plan to study significantly lower, vocational sector courses do not demonstrate a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

16. During the hearing the applicant claimed he would suffer hardship if his visa is cancelled because his dream now is to obtain skills in auto mechanics. In his written statement to the Tribunal dated 2 July 2020 the applicant claimed he enrolled in an Advanced Diploma of Network Security, but the college closed. He said he also obtained a new letter of offer to study a Master of Business Administration on 27 November 2019 from UBSS Sydney but was not issued a COE because his student visa was due to expire. The Tribunal accepts there will be a degree of hardship caused to the applicant from cancellation of his visa and affords some weight in his favour.

17. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     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

18. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not maintain enrolment at the required AQS level. The applicant gave reasons for this in his written submission of 2 July 2020:

    When I decided to study here in Australia, I applied for student visa for Master of Commerce at the University of New South Wales (UNSW) and I was granted a visa on 26th July 2018.

    I enrolled the course 7 August 2018, instead of 23 July 2018 as per my UNSW Confirmation of Enrolment (COE) because due to the visa grant delay which is visa grant dated 26 July 2018. However, it was exceedingly difficult to understand the lectures properly and to follow the course and handling of my study load.

    Moreover, when I started the course, I tried my best to understand and follow the course. And I found it hard to understand the Australian accent properly, and I couldn't cope with the university standard lectures.

    In addition, I felt homesick, alone, and anxious because of the study load and my lack of understanding the subjects which made me depressed and very anxious due to the possibility of me failing the entire course.

    Consequently, I decide to choose study enrol in diploma of leadership management course instead of Master of Commerce which was beyond my intellect. So, I choose to study for a diploma so that I can continue my studies and at the same time improve my English language understanding and communication skills as well.

19. At the Tribunal hearing the applicant reiterated his master’s course had already started when he arrived in Australia and he was late enrolling in subjects. The applicant then found his English was not good enough and the course was too challenging. He claimed UNSW were not willing to provide any help or advice. The applicant also claimed he had not been aware he could not change his course level.

20. The Tribunal accepts the applicant may have had some difficulty adjusting to student life in Australia but does not find it credible that he was unable to obtain any assistance from his education provider, UNSW such that he had no option but to change to a lower level course. The applicant submitted email evidence dated 3 August 2018 indicating that due to lectures already having started, he had to enrol in subjects that would not be credited towards his degree program. The Tribunal considers this may have contributed to his decision not to continue his post-graduate studies.

21. The Tribunal is not satisfied the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to maintain enrolment at the required AQS level or apply to change his visa conditions to study at a lower level. It is the responsibility of visa holders to ensure they comply with conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

27. The applicant advised he had submitted a partner visa applicant which is not consistent with the requirement for a student visa holder to be a genuine temporary entrant for study.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.