KHALID (Migration)

[2020] AATA 2589

KHALID (Migration) [2020] AATA 2589 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD IJLAL KHALID

CASE NUMBER:  1816678

HOME AFFAIRS REFERENCE(S):          BCC2017/3934792

MEMBER:Stephen Conwell

DATE:26 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 May 2020 at 2:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – genuine student – administrative error and miscommunication from educational provider – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140

Migration Regulations 1994, schedule 8, Condition 8202

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 June 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 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.

3. The Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in the review hearing by his registered migration agent (agent).

6. The applicant provided a copy of the decision record to the Tribunal.

7. The applicant participated in the telephone hearing on 26 May 2020 to give evidence and present arguments.  The applicant’s agent did not attend the telephone hearing.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·      has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·      has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 19 July 2016. By Notice of Intention to Consider Cancellation (NOICC) dated 19 January 2018, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study between 13 March 2017 and 9 January 2018 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

13. The applicant provided a written response to the NOICC, dated 6 February 2018 is summarised below:

    ·      the applicant does not state whether he accepts or disputes that there are grounds for cancellation;

    ·      he first enrolled in the Academic English program in August 2016. His educational provider (Edith Cowan University - ECU) recommended that he enrol in further study in Academic English following his poor results at his first attempt. He enrolled in English classes a second time but his results saw only marginal improvement. He was persuaded to enrol in a further eight more weeks of English classes, all of which cost him additional fees. Unfortunately he failed to improve his test results at the third attempt.

    ·      he was disappointed and frustrated by his poor performance in his English studies as the additional study involved a great deal of time and money. His frustration was compounded by grief when he learnt that his father had passed away in March 2016;

    ·      after consulting with his family, the applicant decided to take a break before starting a new ELICOS course which ECU had advised him would afford him direct entry into his course;

    ·      the applicant requested ECU in July 2017 to revise his Confirmation of Enrolment (COE), and was advised that he had to leave the country as the next course didn’t start until August 2017;

    ·      the applicant departed for Pakistan on 19 July 2017. Whilst overseas he corresponded with ECU several times yet at no stage was he advised that his COE had been cancelled. The applicant returned to Australia on 18 September 2017;

    ·      Upon his return to Australia the applicant was advised that his course was due to start on 11 December 2017. However the applicant did not accept this offer as he was concerned that he would have to undertake another ELICOS course and possibly fail again.

    ·      the applicant discussed his predicament with ECU and was advised to consider transferring to another institution. He was offered enrolment by Group Colleges Australia (GCA) in Sydney, NSW without requiring a further ELICOS course. He accepted the offer and relocated to Sydney, where he is continuing his studies.

    ·      The applicant admits there was some negligence on his part, however he breached his visa conditions unintentionally. ECU must be partly responsible for not advising him when his COE was cancelled, even though he was in email correspondence with them whilst he was back in Pakistan.

14. The applicant’s response to the NOICC included evidence of:

    ·      his father’s death certificate;

    ·      some medical notes concerning his mother from an orthopaedic clinic in Pakistan;  and

    ·      copies of the email correspondence between the applicant and ECU between February – October 2017, referred to in his response to the NOICC.

15. The applicant provided a further submission to the Tribunal on 15 May 2020, which is summarised below:

    ·      before his arrival in Australia the applicant had already completed a Bachelor of Commerce in 2012 and a Master of Science and Statistics Management in 2014;

    ·      he repeats the chronology of events surrounding his return to Pakistan in August 2017 and his return to Australia a month later;

    ·      he addresses the Genuine Temporary Entrant (GTE) criteria in his submission however the Tribunal notes that these factors are not relevant to the grounds upon which his visa was cancelled.

16. Having regard to the information in the PRISMS as outlined in the decision record and the other evidence before it, the Tribunal finds that the applicant was not enrolled in a CRICOS registered course between 13 March 2017 and 9 January 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

17. 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). 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.

18. 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

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘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

21. The applicant was granted a Student visa to travel to Australia. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. According to his PRISMS record the applicant has not been enrolled in a registered course of study for the period between 13 March 2017 and 9 January 2018. This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies for a lengthy period exceeding nine months. The Tribunal give this considerable weight towards the visa being cancelled.

    The extent of compliance with visa conditions

22. The applicant has not complied with condition 8202(2) for a considerable period of time, exceeding nine months. The Tribunal considers the applicant’s period of non-enrolment to be a serious breach of a visa condition. However there is no evidence before the Tribunal that the applicant has been non-compliant with his other visa conditions. On balance, the Tribunal gives this factor no weight towards exercising its discretion to set aside cancellation of the visa.

23. Having regard to this email correspondence and the applicant’s oral evidence, the Tribunal finds that the applicant departed Australia on 19 July 2017 to return to Pakistanis prepared to accept that the applicant returned in the applicant’s failure to comply with visa condition 8202 through non-enrolment in a registered course of study for over nine months to be probably the result of administrative error or miscommunication by the applicant’s education provider at that time, ECU.  Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal gives this factor considerable weight towards exercising its discretion to set aside cancellation of the visa.

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

24. The Tribunal considers the main hardship that would be caused to the applicant through the cancellation of his Student visa pertains to his higher education studies. The applicant is currently enrolled in a Master of Business Administration (MBA) which he commenced in January  2018. It is to his credit that he has sought to remain enrolled in a CRICOS registered course at the higher education level and has continued full-time studies whilst on a Bridging visa. Should he be permitted to continue his studies he would complete this degree in a few months’ time. Should his visa cancellation remain in place he would not graduate with the Australian qualification he has almost completed. Given these circumstances the Tribunal considers the hardship caused by his visa remaining cancelled to be unduly onerous and unjustified.   

25. The applicant explained at hearing that it was his father’s suggestion that he obtain an overseas qualification, notwithstanding his other tertiary qualifications attained in his home country of Pakistan. With his father’s death in 2016, the Tribunal find that the continuation of the cancellation would cause the applicant undue hardship and emotional pain; the Tribunal gives this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

    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

26. The Tribunal has considered the circumstances in which the ground for cancellation arose. The applicant completed a Bachelor of Commerce and a Master of Science before his arrival in Australia. He came to Australia to study for a Master of Professional Accounting however he was unable to pass the pre-requisite English language (ELICOS) course, despite his several attempts at doing so.  According to his evidence the applicant returned to Pakistan on 19 July 2017 to spend a few weeks with his family and take a break from his failed ELICOS studies. He was in email correspondence with his educational provider, ECU before he left for Pakistan and whilst he was there. Despite his querying with ECU regarding the issue of his next COE he was never issued a new COE nor was he advised that his current COE had been cancelled.  At no stage did ECU suggest that the applicant might defer his studies.

27. On his return to Australia he decided not to accept a revised offer of enrolment at ECU since he was concerned that he would be required to re-sit the ELICOS exams. Instead the applicant  accepted an offer with Group Colleges Australia (GCA) in October 2017 to enrol in the MBA course and in January 2018 he relocated from Perth to Sydney for that purpose. The applicant accepted the offer to enrol with GCA since it was not predicated upon him being required to attend and pass any further ELICOS study. He was already studying at GCA in Sydney when he was issued with the NOICC.

28. Having considered the written submission and having the benefit of the applicant’s oral evidence the Tribunal can discern no attempt by the applicant to avoid study, mislead his educational provider or the Department. The Tribunal is satisfied that the applicant is a genuine student whose academic progress has been interrupted by administrative error or miscommunication by ECU, his educational provider at the time of breach. The Tribunal finds that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control, however it appears that he made genuine and ongoing efforts to communicate with ECU in seeking to maintain his enrolment.  The Tribunal accepts that he did not intentionally commit an error or breach of his visa conditions and that he was not aware the breach until he was served with the NOICC.  The Tribunal give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

    past and present behaviour of the visa holder towards the Department

29. The applicant appears to have communicated promptly and truthfully with both the Department and ECU. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.

    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

30. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the circumstances as set out above, cancellation of his visa would be unfair given that the applicant is so close to completing his MBA, with only four study unity outstanding. The Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.

    whether there would be consequential cancellations under s.140

31. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

32. This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.

    Any other relevant matters

33. The Tribunal notes that the applicant’s visa would otherwise have expired on 15 March 2019. He will have to apply for a new visa within a short period if he wishes to study in Australia. This will give the Department an opportunity to reassess the merits of his visa application. Due to changes in the Migration Regulations, Class TU visas Subclasses 570 to 576 have been replaced by Class TU Subclass 500 Student visas as from 1 July 2016.

34. The Tribunal finds that there are no other relevant matters.

    Summary

35. The Tribunal is mindful of the lengthy period of non-compliance and the seriousness of the breach, however having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    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.