KHAN (Migration)

[2020] AATA 4212

KHAN (Migration) [2020] AATA 4212 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Ahmed Ali Khan

CASE NUMBER:  1713467

HOME AFFAIRS REFERENCE(S):          BCC2017/1568399

MEMBER:Peter Booth

DATE:5 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2020 at 12:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – request for deferral of enrolment while investigating temporary or permanent residence – one English course not completed, otherwise no further enrolment or study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 the applicant was not enrolled in a registered course and therefore did not satisfy condition 8202(2)(a). 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 by telephone on 2 October 2020 to give evidence and present arguments. 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

4. 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?

5. 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).

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

7. The delegate’s decision dated 19 June 2017 concludes that the applicant’s enrolment in a Master of Information Technology Course was cancelled by the course provider on 11 August 2016. Further, at the time of the delegate’s decision, the applicant had not been enrolled in a course of study from 11 August 2016 until 22 May 2017. The applicant conceded that he had not been enrolled in a course of study from 11 August 2016. 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

8. 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’.

9. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

   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

10. The applicant arrived in Australia on 2 February 2016 as the holder of a higher education student visa. He intended to study a Master of Information Technology degree. He said he commenced this course  several weeks after he arrived in Australia. The applicant did not give any evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

11. The applicant confirmed that he was not enrolled in the Master of Information Technology degree from 11 August 2016. He agreed with the finding of the delegate that, as at the date of the delegate’s decision, he had not been enrolled in a course of study from 11 August 2016 until 22 May 2017. He also said that except for an English course which he did not complete, he has not been enrolled in a course of study since 11 August 2016 and is not currently enrolled in a course of study.

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

12. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose

13. The applicant arrived in Australia on 13 February 2016 as the holder of a higher education visa. He intended to study a Master of Information Technology. He commenced the course shortly after arriving in Australia and he completed the first semester. The first semester, he said, concluded in August 2016. When asked why the enrolment was cancelled he said “Because I did not enrolled in the second semester”. When asked why he did not enrol he said “I was asking them for a break, they said no, then the COE got cancelled”. He did not elaborate. Invited to expand, he said “When I finished the first semester, I found out that if you have enough points you can be eligible for TR or PR, I can’t letter my score, I was on 55 points, I needed 60 points, if I got enough points I was eligible, I was preparing my documents and then I got the cancellation.” When asked whether he applied to defer the Master’s degree he said “I applied, I asked for a deferral of one semester.” When invited to add anything further to his application for review he said “I arrived in 2016 and I wasted four years, but if I got back without the masters program I will have nothing, at least I will have a degree, I left my education course behind, if I go back without a degree, I have done bachelor level in India only.”

14.   It is clear that the applicant did not continue with the Master of Information Technology degree because he chose to investigate obtaining either permanent residency or temporary residence in Australia by different means. He asked the course provider for either “a break” or to defer the course, it is not clear which but for present purposes it seems to be a distinction without significance. That request was declined. Nonetheless the applicant did not re-enrol and chose to pursue his new interest in qualifying for either permanent residency or temporary residence in Australia. It appears that his efforts in that regard were unsuccessful.

1. The Tribunal considers it was the applicant’s responsibility as the visa holder to be familiar with the conditions attached to his student visa. The Tribunal does not consider that the circumstances in which the cancellation arose were beyond the control of the applicant. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

2. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Whether there would be consequential cancellations under s.140

3. The Tribunal was provided with no evidence on this point and gives it little weight.

   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

4. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

   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

5. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

6. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Any other relevant matters

7. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

   DECISION

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

   Peter Booth

   
   

   Member

   Peter Booth
   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.