Khan (Migration)

[2020] AATA 4177

Khan (Migration) [2020] AATA 4177 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hanan Farooq Khan

CASE NUMBER:  1929753

HOME AFFAIRS REFERENCE(S):          BCC2019/4036724

MEMBER:Stephen Conwell

DATE:30 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 30 July 2020 at 3:03pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – financial hardship – limited academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958, s 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 14 October 2019 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 that the applicant failed to maintain enrolment in a registered course that once completed would provide a qualification from the Australian Qualifications Framework (AQF), at the same level as or at a higher level than the registered course in relation to which the visa was granted. As a consequence the applicant 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. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The applicant participated in the telephone hearing on 9 July 2020 to give evidence and present arguments. 

5. 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 its 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 phone.

6. 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

7. 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?

8. 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)

   ·      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (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: 8202(2)(b);  and

   ·      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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course at the same level as, or at a higher level than, the registered course for which the visa was granted: condition 8202(2)(b).

10. As the applicant is not enrolled in a course at the AQF Level 9 (Master’s Degree) or Level 10 (Doctoral Degree), subclause 8202(3) does not apply to him.

11. The applicant was granted a Subclass 500 (Student) visa on 2 July 2018 for enrolment in a Foundation Studies followed by a Bachelor of Engineering (Honours) (AQF level 8) at the Royal Melbourne Institute of Technology (RMIT) for the period 23 July 2018 to 30 June 2023. 

12. As noted in the decision record, the applicant is not a Defence, Foreign Affairs or secondary exchange student and therefore condition 8202(2)(b) attached to his visa. Condition 8202(2)(b) states that visa holder must maintain enrolment in a registered course that, once completed, will provide an AQF qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

13. By Notice of Intention to Consider Cancellation (NOICC) dated 9 September 2019, 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 his enrolment in the Engineering course was cancelled by RMIT on 15 October 2018 due to non-commencement of studies. 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.

14. The applicant provided a written response to the NOICC via email on 23 September 2019, prepared by his agent, which is summarised below:

    ·      confirmed that he came to Australia to pursue dreams of higher studies;

    ·      after attending the enrolment information session he was advised by the university that the semester fees had increased and he needed to make further payment to meet the shortfall;

    ·      the applicant was not in a position to ask for more money from his family, so he attempted to borrow money from friends but was unsuccessful;

    ·      the applicant regrets his decision to not inform his family in Pakistan given the chain of events which then lead to the cancellation of his Student visa;

    ·      the applicant concedes that he was advised that his enrolment may be cancelled due to non-payment of fees, but he claims that never received the final notification;

    ·      the applicant stopped attending his course, hoping to avoid being asked by his education provider about the outstanding fees;

    ·      the applicant did not consider that failing to pay his student fees would have serious consequence for his visa status;

    ·      on 15 June 2019 he lodged his application for Certificate III and Certificate IV and received confirmation of these enrolments (COEs);

    ·      the applicant is a genuine student whose actions in changing his enrolment were misguided but sincere efforts to remedy his inability to pay the additional college fees;

    ·      he serious about pursuing his studies in Australia and has an offer letter for a future Bachelor of Business Administration. If he can compete his studies lawfully in Australia, he intends to return to Pakistan upon so doing.

15. The following documents accompanied the applicant’s response to the NOICC:

    ·      Offer and acceptance of enrolment to study a Bachelor of Business at Universal Business School, Sydney for the period 31 August 2020 – 18 August 2023.

16. The applicant’s response to the NOICC does not dispute his breaching of his visa conditions, however it seeks to explain the circumstances of the breach.

17. The applicant’s oral evidence at hearing is summarised below:

    ·      he first arrived in Australia on 9 July 2018.  He confirmed that the purpose for him coming to Australia was to study;

    ·      before leaving Pakistan he had completed a two-year engineering course at the equivalent of Australia’s Year 12 level;

    ·      he is one of two brothers; his sibling travelled to Australia in 2019 on a similar Student visa but is currently back in Pakistan due to the travel restrictions imposed by the COVID-19 pandemic. His parents are in Pakistan. He has no family in Australia. He lives with friends in rental accommodation;

    ·      he concedes that he was advised that non-payment of fees may lead to his COE being cancelled. He received a final warning in September 2018 and his enrolment was cancelled on 15 October 2018;

    ·      from October 2018 to June 2019 he was not enrolled in any course.  In June 2019 he enrolled in automotive studies in the Vocational Educational and Training sector (VET) sector. He claims that he acted upon misleading advice from a migration agent that under his visa conditions he could enrol in VET studies and then return to his bachelor (honours) studies at a later date;

    ·      he confirmed that he had not attempted to contact the Department or RMIT, either before or after his change of enrolment, regarding the visa implications of his change of enrolment to the VET sector;

    ·      he remained on shore during the summer break, choosing not to return to Pakistan. Between October 2018 and February 2019 he worked at Uber Eats approximately 15 hours per week as a delivery driver. Since February 2019 he has worked as a petrol station attendant approximately 20 hours per week and he continues to work in this role;

    ·      after commencing his Certificate III studies in June 2019, his enrolment was cancelled following cancellation of his Student Visa on 14 October 2019;

    ·      he claims to have received to offers of enrolment, both at bachelor level however only one offer has been submitted to both the Department and the Tribunal. He was unable to elaborate further on the other offer of enrolment;

    ·      he conceded that during his time onshore he has not successfully completed any semester studies and has not attained an Australian qualification. Nevertheless he seeks a second chance to complete his studies in Australia in order to obtain some qualification to take back to Pakistan;

    ·      when asked by the Tribunal if there were compelling reasons for him to remain in Australia, the applicant’s reply was that if he were allowed to complete even a VET diploma in Australia it would be regarded in Pakistan as being almost equivalent to a bachelor degree.

18. At hearing the applicant’s agent reiterated that the applicant came to Australia as a young man (20 years old) who had failed to appreciate the gravity of his non-payment of college fees. He was misled by the incorrect migration advice into believing that his change of enrolment to the VET sector was permissible on his Student visa. The applicant has made an honest mistake and deserves a second chance to complete his studies in Australia

19. The applicant conceded in evidence that by reason of not being enrolled in a course at AQF level 8 or higher from 15 October 2018, he did not meet condition 8202(2)(b) of his visa. On the evidence before the Tribunal, the applicant was in breach of condition 8202(2)(b).

20. 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

21. 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’

    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

22. At hearing the applicant confirmed that that the purpose of his travel to and stay in Australia was to study a higher education sector level course at an education provider approved  under the Streamlined Student Visa processing arrangements. As a consequence the applicant was subject to less onerous evidentiary requirements for the grant of his Student visa.  According to the decision record the applicant’s PRISMS records indicate that he has not held enrolment in a course at the higher education sector AQF level 8 since 15 October 2018.  From that date he fell in breach of his visa condition 8202(2)(b).

23. Although the applicant failed to complete any of the courses he started, the Tribunal is satisfied that his original intention to travel to and stay in Australia was to study. While the applicant has expressed a desire to continue his studies in Australia, his claims about his future endeavours were general in nature and unsupported by independent evidence. As such, he has not demonstrated a powerful or convincing reason to remain in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and gives this factor some weight  towards the visa being cancelled.

    the extent of compliance with visa conditions

24. The applicant has not held enrolment in a course at the higher education sector AQF level 8 since 15 October 2018, in breach of condition 8202(2)(b) The Tribunal considers this to be a serious breach of the applicant’s visa conditions.  The Tribunal therefore gives this factor considerable weight towards the visa being cancelled.

25. There is no evidence of the applicant having passed any subjects whilst in Australia. According to the evidence, the applicant was not enrolled in any course of study at any level for a period of some eight months – from 15 October 2018 to 17 June 2019.

    26.   There is no evidence before the Tribunal that the applicant has is in breach of any other visa conditions However the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.

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

26. The applicant has submitted no evidence in support of such claims, apart from confirming that his father is his financial sponsor and should his visa remain cancelled, his father would suffer considerable financial loss. The Tribunal notes that the administrative decision by RMIT to increase student fees applied to a wide class of students – it was not specific to the applicant. The applicant’s response to this decision was to simply stop attending classes; he did not seek advice from RMIT with respect to the fee increase or discuss his personal financial difficulties. Neither did he speak to his family about the matter. The applicant’s response to his learning of the fee increase was neither reasonable nor responsible.

27. Whilst the Tribunal accepts that the applicant and his family would be disappointed lack of success with his overseas studies, the applicant has not demonstrated a significant level of hardship that would result if his visa is cancelled.  The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees lost as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

28. The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration weight against cancellation of the visa. The Tribunal is not satisfied, on the evidence before it, that he or members of his family, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling 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

29. The circumstances that led to the cancellation of the applicant’s enrolment have been described above. The applicant’s enrolment in his Bachelor (Honours) study course (AQF level 8) was cancelled on 15 October 2018. Thereafter he remained unenrolled for some eight months until he enrolled in the VET sector in automotive course at far lower AQF levels. By doing so he fell in breach subclause 8202(2)(b). In his evidence the applicant did not dispute the grounds for cancellation. He conceded that he “didn’t make a sincere effort to understand ‘how the education system works in Australia’”.

30. The Tribunal notes there is no evidence that that the applicant sought to engage with RMIT or with the Department in order to seek a deferment of his studies or  to request a change to his visa status in line with his new enrolments.

31. In his response to the NOICC the applicant refers to the Procedural Instruction on Visa Cancellation in PAM3, seemingly to emphasise that a decision maker must have “due regard to a political upheaval” in the applicant’s home country and consider whether such political disruption amounts to “exceptional circumstances” to the detriment of the applicant’s ability to comply with condition 8202. The Tribunal notes that no evidence was tendered to the Department in support of this claim, nor was the claim pursued any further at hearing. Accordingly the Tribunal gives no weight to this claim that “political upheaval” in the applicant’s home country affected his ability to comply with condition 8202

32. Whilst the Tribunal accepts that the applicant’s response to the fee increase may have been naïve on his part, on the basis of the evidence before it the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional or beyond the applicant’s control. The Tribunal finds that the applicant’s circumstances considered as a whole, weigh in favour of cancellation of the visa.

    past and present behaviour of the visa holder towards the Department

33. According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight against 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

34. The Tribunal is mindful that cancellation might lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to ss.189 and 198, respectively. The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of Public Interest Criterion 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

    whether there would be consequential cancellations under s.140

35. 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

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

    Any other relevant matters

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

    Conclusion

38. The Tribunal is not satisfied the applicant’s naïve and passive response to the fee increase is a sufficient reason for the visa not to be cancelled. The Tribunal recognises that the cancellation of the visa is a significant matter, but having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.

1. On balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Stephen Conwell
   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.