Mawanda (Migration)

[2019] AATA 1351

Mawanda (Migration) [2019] AATA 1351 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Byron Mawanda

CASE NUMBER:  1621243

HOME AFFAIRS REFERENCE(S):           BCC2016/3439450

MEMBER:Wendy Banfield

DATE:14 January 2019

PLACE OF DECISION:  Sydney

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 14 January 2019 at 8:34pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – breached condition 8202 – not enrolled in a registered course of study – the course applicant enrolled in is not an approved course – financial hardship for the applicant if the visa is cancelled – applicant attempted to comply with visa conditions – good academic results – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 December 2016 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 of study from 1 January to 9 December 2016 and was therefore in breach of visa condition 8202. 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

3. The applicant is a citizen of Uganda and is currently 28 years old. He came to Australia in 2011 to study English. He also completed a Bachelor of Commerce and in 2016 applied for a Subclass 485 visa. That application was out of time and was refused by the Department. The applicant then enrolled in a course of study that was not approved for international students in accordance with the Migration Regulations and his student visa was cancelled. The applicant went on to complete a Master of Professional Accounting and is currently enrolled in an MBA.

4. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   Applicant’s submissions

5. The applicant submitted evidence in support of his application for review. This included a written submission by the representative for the applicant, evidence of past and present studies in Australia, the decision by the Department to refuse the application for a Subclass 485 visa, a copy of an AAT decision dated 12 January 2018, Overseas Student Health cover, and a statement by the applicant dated 27 November 2018.

6. The applicant’s evidence is that he arrived in Australia to study English and a double degree of five years duration. He changed his undergraduate studies to a three year degree and after completion, applied for a Subclass 485 Graduate Visa in order to gain work experience in Australia. The application for a Graduate Visa was refused because the applicant applied outside the required period. According to the applicant’s evidence, he was mistaken as to when he had formally completed his degree and therefore, the correct due date in applying for a graduate visa. The applicant applied for a review of the decision and in the meantime, completed a Masters in Professional Accounting. He is studying an MBA which is due to be completed in October 2020.

7. The applicant does not dispute that he was not enrolled in an approved course of study from 1 January to 9 December 2016. The applicant later enrolled in a MYOB course with Open Colleges which is not an approved course. For these reasons the applicant’s Student Visa was cancelled. The applicant claims he is a genuine student, has worked very hard pursuing his education and considers his continuing studies will improve his prospects of obtaining well paid employment in future.

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 Department found the applicant was not enrolled in an approved course of study for a period of 11 months in breach of visa conditions. In his evidence at the hearing and in written submissions the applicant did not dispute this was the case. 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

13. 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

14. The applicant was in Australia as the holder of a Subclass 573 Student Visa. He has studied English and an undergraduate degree as well as a Masters course. On the evidence before it, the Tribunal is satisfied the applicant’s original intention to travel to and stay in Australia was for study.

    ·     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 the Tribunal gives this aspect some weight in the applicant’s favour.

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

16. The applicant provided evidence to the Department regarding hardship that he alleges may result from his visa being cancelled.

17. It was submitted the applicant has worked hard to achieve his study goals in Australia and wants to finish his MBA. The applicant claims the additional qualifications will give him an edge in his home country in future. He explained the difference as he sees it between a Masters of Professional Accounting and an MBA, and how those qualifications relate to future goals. The applicant submitted his parents have funded his education at considerable cost and are hopeful he can complete his studies.

18. The Tribunal has considered the applicant’s claims in this regard and accepts that if his visa is cancelled, he may face a degree of financial hardship. The applicant would be unable to work or study in Australia and would have to return to Uganda. The Tribunal affords some weight in the applicant’s favour on these grounds.

    ·     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

19. The applicant provided evidence to the Tribunal about the circumstances in which the grounds for cancellation arose. The applicant did not dispute that he was not enrolled to study an approved course for nearly 11 months from 1 January to 9 December 2016.

20. According to the applicant’s evidence, he completed a three year Bachelor of Commerce degree. The applicant then applied for a Subclass 485 Graduate Visa but did not submit his application in time. He said this was due to his misunderstanding regarding when the six month period in which to apply for a graduate visa ran from, and the time it took to obtain certain documents such as police checks from his home country.

21. Prior to his visa being cancelled the applicant enrolled in a MYOB course which is related to his studies but is not an approved course for migration purposes. According to the applicant he then enrolled in a Master of Professional Accounting which is now complete and an MBA. The applicant said he had done intern work in Accounting and had been hoping to gain work experience in Australia. This was the reason for applying for a Subclass 485 Graduate Visa.

22. The Tribunal notes the grounds for cancellation were not due to a relationship breakdown nor were they circumstances beyond the applicant’s control. However, the Tribunal accepts the cancellation occurred because the applicant did not make a further visa application in time. It was not a situation where the applicant failed to take any action following completion of his degree while continuing to hold a Student Visa, he was attempting obtain a further visa to gain work experience in his chosen field. The Tribunal affords the applicant weight in this regard. Although he was in breach of visa conditions, the applicant attempted to comply by enrolling in a software (MYOB) course with Open University. Unfortunately this was not an approved course and his visa was subsequently cancelled.

23. The applicant then enrolled in and completed a Masters in Professional Accounting and is undertaking an MBA. The Tribunal places further weight on the fact the applicant continued to study while awaiting the outcome of his application for review and has continued to progress in his education in a logical manner.  It was submitted that at the time the grounds for cancellation occurred, the applicant was not represented and the Tribunal has taken this into account as well as the evidence that demonstrates the applicant attempted to comply with visa conditions.

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

24. 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

25. 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

26. The cancellation of the visa would mean 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. However, those are the intended consequences of the legislation and has not been considered as a reason why the applicant’s visa not be cancelled.

    ·     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

27. 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

28. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

29. There are no other relevant matters to be considered in this case.

30. The Tribunal has weighed the evidence and on balance, considers the applicant’s student visa should not be cancelled. The applicant has been a successful student achieving good results in his Bachelor degree. He has gone on to higher education having completed a Masters in Professional Accounting and is studying for an MBA. For these reasons and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Wendy Banfield
    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.